Why are Some International Agreements Informal? Author(s): Charles Lipson Source: International Organization, Vol. 45, No.

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Whyare some international informal? agreements

Lipson Charles

"Verbal contracts,"Samuel Goldwyn once said, "aren't worth the paper they'rewrittenon." Yet informalagreementsand oral bargains suffuse cooperationtakesin thatinternational Theyare theform affairs. international exchangeratesto nuclearweapons.Take monetary a wide rangeofissues,from there System, for affairs, instance.ExceptfortheregionalEuropean Monetary on agreements exchangerates since the comprehensive have been no formal, to in of Woods system 1971.A prolongedeffort resurrect downfall theBretton the pegged-rate system failed,althoughnew treatieswere drawnup and duly and efforts, theseofficial markets overwhelmed simply financial signed.Private central bankers eventuallyconceded the point. The one comprehensive of ratified system a merely sincethen,concludedin 1976in Jamaica, agreement monetary years, ratesthathad emergedunplanned.For thepast fifteen floating agreementsof indefinite have been a succession of informal arrangements duration,most recentlythe Plaza Communique and the Louvre Accord, The Bretton Woods designed to cope with volatile currencymovements.1 in years.It was held itselfdepended on such agreements its declining system their banksnotto convert of by together the tacitagreement European central major dollar holdingsinto gold. The systemfell apart when Germanyand They did so because theybelieved that France abandoned thatcommitment. to the United States had abandoned its own (tacit) commitment restrain Put way,the U.S. accountdeficits. another and inflation to avoid largecurrent
David Spiro,CharlesKupchan,Jack I and For their comments suggestions, thankEd Mansfield, Political Economyat Columbia in Snyder,and otherparticipants the Seminaron International I University. am also gratefulto Douglas Baird, Anne-Marie Burley,Dale Copeland, Scott Leuning,Duncan Snidal, Stephen Walt, and other colleagues in the Programon International of (PIPES) at theUniversity Chicago. Economics,and Security Politics, D.C.: the 1. See Yoichi Funabashi,Managing Dollar: FromthePlaza to theLouvre(Washington, Institutefor InternationalEconomics, 1988); and Peter B. Kenen, ManagingExchangeRates (London: Routledge, 1988). Kenen reproduces key portionsof the Plaza Communique (22 1987) on p. 50. September1985) and theLouvreAccord (22 February 45, Organization 4, Autumn1991 Intemational ? 1991bytheWorldPeace Foundationand the Massachusetts of Institute Technology

496 International Organization dollarsintogold at $35 per ounce-the veryheartof formal pledge to convert the BrettonWoods system-was sustained only by silent agreementsthat Americawouldnotbe called upon to do so.' as are relationships well. AmeriSuch informal agreements vitalin security understandon the with SovietUnionhavereliedheavily unspoken ca's relations the are ings.These tacitrelationships crucialfortworeasons.First, Americans and commitments, fewerstillin and Sovietshave made veryfewdirecttreaty Second, formuch of the postwarperiod,each key areas of nationalsecurity. the side was openlyhostileto the otherand outspokenin denying value and at wentmuchfurther times, of even the legitimacy cooperation.The rhetoric to interests the right governat home,itsbasic security challenging adversary's in dealings.For all that,the United abroad,and itstrustworthiness diplomatic framedtheirbasic security policies in States and SovietUnion have generally more prudentand cautious terms.The U.S. decision to pursue containment was a tacit ratherthan "rollback,"even at the heightof Cold War tensions, in of acknowledgment the Soviet sphereof influence Eastern Europe. When the brokeout during 1950s,the United States did nothingpopularuprisings Poland, and Hungaryand in to nothing aid resistancemovements Germany, nothingto deter their forciblesuppression.In a related area of unspoken agreement,each side has been careful to avoid any direct engagementof of involvement Sovietsand Americansin forces, despitethe frequent military limited wars around the world. Paul Keal has termed such policies the diplomacy.3 "unspokenrules"of superpower betweenthe arrangements Unspokenrulesare nottheonlykindsofinformal armslimitations, boththeAmericansand In superpowers. thecase of strategic the Sovietspubliclyannouncedthattheywould continueto observethe first aim it SALT treaty after expiredin October1977.The principal was to sustaina Leonid Brezhnev climateof cooperationwhileSALT II was beingnegotiated. in SALT II agreement 1979,butthe treaty and Jimmy Cartersignedan interim withdrawn 1981.Even so, in by itself neverratified theSenate. It was finally was
Monetary Reform, 1971-1974 (New York: New 2. See JohnWilliamson,The Failureof World and Press,1977); and KennethW. Dam, TheRulesoftheGame: Reform Evolution York University of in the IntemationalMonetarySystem(Chicago: University Chicago Press, 1982). For a of thanon thebreakdown international on politicsrather focusing U.S. domestic counterargument and theEnd ofBretton Domestic Politics the see commitments, JoanneGowa, Closing Gold Window: Press,1983). Woods(Ithaca, N.Y.: CornellUniversity Rulesand SuperpowerDominance (London: Macmillan,1983). Some 3. See Paul Keal, Unspoken to were made to articulatethe rules,but theydid littlein themselves clarify diplomaticefforts talks(SALT I) were concluded,Nixonand armslimitation expectations. 1972,as the strategic In some key elementsof the Brezhnevsignedthe Basic PrinciplesAgreement.It soughtto specify of and thereby facilitatethe development detente.The productwas superpowers'relationship withthe Soviet vague and ambiguous.Worse, it seemed to indicate-wrongly-U.S. agreement in positionon peacefulcoexistenceand competition otherregions.AlexanderGeorge calls these 26 For see of "a elements pseudoagreement." the textof theagreement, Department StateBulletin, of Agreement see June1972,pp. 898-99. For an analysis, AlexanderGeorge,"The Basic Principles Problems CrisisPrevention of 1972," in AlexanderL. George, ed., ManagingU.S.-SovietRivalry: Press,1983),pp. 107-18. (Boulder,Colo.: Westview

agreements 497 Informal the the Americansand Soviets avoided undercutting agreementand tacitly untilthelate 1980s.This cooperationis remarkable observeditskeyprovisions opposing had because the Reagan administration come to power strenuously its helpedprevent passage in theSenate, of ratification theSALT II agreement, and held fastto its declared opposition.In dealingwiththe Soviets,however, In was the administration more accommodating. the earlydaysof the Reagan the State Department announced that the United States administration, made a similar The Presidenthimself "would not undercut"the agreement. treaty was The unratified kept to the bargain.4 in statement 1982 and largely major arms even during the Reagan administration's observed informally nuclearweapcategoriesof long-range specific buildup.Both sides restricted agreement despitethe absence of anyformal ons to meetSALT II limitations, to do so. alwaysclaimed that its nuclear policies were The Reagan administration Yet it devoted considerable attentionto possible unilateraland voluntary. These violations treaty.5 all, Soviet"violations"ofwhatwas, after a nonexistent were importantbecause President Reagan always stated that U.S. arms and progresstoward a new arms depended on Soviet reciprocity restraints the criticized Sovietson bothcountsbut in practice Reagan repeatedly treaty.6
on 4. The State Departmentannouncedits positionin a briefpublic statement 4 March 1981. policy,and Reagan continuedto criticize continuedto debate its armscontrol The administration In Carter'sSALT II agreement. earlyMay 1982, he told a press conferencethatthe agreement thatwe're an "simplylegitimizes arms race" and added that"now the parts [of the agreement] and of ... observing have to do withthemonitoring each other'sweaponry, so bothsides are doing talks(START), Reagan finally armsreduction that."In late May 1982,on the eve of the strategic stated that the United States "would not undercut"the SALT II agreement.He continuedto the whichportionsof the agreement United Stateswould and leftuncertain it, criticize however, of observe.See the Departmentof State announcement 4 March 1981,citedbyStrobeTalbottin (New York: Control in and Deadly Gambits:TheReaganAdministration theStalemate NuclearArms of statement 13 May 1982,quoted in pressconference VintageBooks, 1985),p. 225; thePresident's Documents,vol. 18, no. 19, 17 May 1982, p. 635; and the of Compilation Presidential Weekly delivered National Cemetery," President's"Remarksat MemorialDay Ceremoniesat Arlington States:Ronald Reagan, of on 31 May 1982 and includedin PublicPapersof thePresident theUnited Printing Office, 1983),p. 709. D.C.: Government 1982,book 1 (Washington, report to Congress, President Reagan cited in detail Soviet 5. In 1984, in a confidential messagestated Reagan's accompanying withnumerousarmscontrolagreements. noncompliance that"violationsand probable violationshave occurredwithrespectto a numberof Soviet legal wereincluded, field."SALT II violations in and obligations politicalcommitments thearmscontrol were expandedin alludes to them.These criticisms to and the reference "politicalcommitments" another report,issued in 1985. The Soviets rejected these charges and made counterclaims K. are Relevantdocuments citedbyNotburga Calvo-Gollerand Michael U.S. violations. regarding (Dordrecht, Netherlands: Content-Application-Verification A. Calvo in The SALT Agreements: 1987),pp. 318 and 326 ff. Nijhoff, Martinus not 6. PresidentReagan did restatethe U.S. commitment to undercutSALT II in June 1985, was however, always wouldhave expired.U.S. policy, treaty beforethe unratified some sixmonths on contingent reciprocalSoviet adherence. On that point, Reagan was sharplycritical:"The armscontrolagreements. existing United States has not takenany actionswhichwould undercut the keptitspartof thebargain;however, Sovietshave not.... Certain The United Stateshas fully Such is the case withrespectto the Soviet Sovietviolationsare, bytheirverynature,irreversible. of and Union's flight-testing steps towarddeployment the SS-X-25 missile,a second new typeof Since SALT II agreement. by ballisticmissile]prohibited the unratified ICBM [intercontinental

Organization 498 International date of the continuedto observeSALT limitsuntilwell afterthe expiration for but was The agreement tacit, no less an agreement that. proposedtreaty. actorsare not exceptional. accordsamongstatesand transnational Informal of The scale and the diversity such accordsindicatethattheyare an important of featureof worldpolitics,not rare and peripheral.The veryinformality so politics.It highbasic featuresof international illuminates manyagreements cooperation,the profusionof search for international lightsthe continuing forms takes,and the seriousobstaclesto moredurablecommitments. it are promises whetherformalor informal, All international agreements, they about futurenational behavior.To be consideredgenuine agreements, commitments. future or implying promises actions, mustentailsome reciprocal to maybe consideredinformal, a greateror lesser degree,ifthey Agreements whichis givenmost and mostauthoritative imprimatur, lack the state'sfullest ratification. in clearly treaty of The informality agreementsvaries by degrees, along two principal is level at whichthe agreement made. The first the government is dimensions. is themost of state(an executive made bythehead agreement) A commitment visible and credible sign of policy intentionsshort of a ratifiedtreaty.In bureaucracies less effective are by commitments lower-level matters, important on less are simply constraining heads of state, nationalpolicy.They in binding because they partly seniorpoliticalleaders,and otherbranchesofgovernment, The second dimension theform, is lack a visibleimpacton nationalreputation. or means, by which an agreementis expressed. It may be outlined in an a exchangeofnotes,a or document, itmayinvolve less formal elaboratewritten Writtenagreean oral bargain,or even a tacitbargain.7 joint communique, of consideration the to mentsallow greaterattention detail and more explicit the that arise.Theypermit partiesto set theboundariesof contingencies might their promises, to control them more precisely,or to create deliberate matters.At the other end of the and omissionson controversial ambiguity Theirpromises of spectrum-mostinformal all-are oral and tacitagreements. and the very are generallymore ambiguous and less clearly delimited,8
of the noncomplianceassociated withthe development thismissilecannot be correctedby the mannerat the to Soviet Union, the United States reservesthe right respondin a proportionate of Compilation of statement 10 June1985,quoted in Weekly time."See thePresident's appropriate vol. Documents, 21, no. 24, 17 June1985,pp. 770-71. Presidential all law. Virtually are 7. It is worthnotingthatall of these distinctions ignoredin international whethermade by the head of state or a whetheroral or written, commitments, international is commitments." What is missing are bureaucracy, treatedas "bindinginternational lower-level but policy, theirstatusas domestic including of notonlythe politicaldimension these agreements, also any insightinto why states choose more or less formalmeans for their international agreements. promisesin greatdetail and by 8. Tacit and oral agreements, theirverynature,do not specify or rarelyspell out contingencies remedies. Consider, for example, the informalcooperation Agencyand Israel's intelligence agencies such as the U.S. CentralIntelligence betweenfriendly on spying each both sides engage in unacknowledged information, Mossad. Besides exchanging and what differentiates agreement, other.But what are the limits?What violates the informal these issues and to encourage regular serious violationsfrom"normal cheating"? To clarify

Informal agreements 499 If authority make and executethemmaybe in doubt.9 disputeslaterarise,it to is oftendifficult specify to whatwas intended ante.Indeed, itmaybe difficult ex to showthattherewas an agreement.10 The interpretive problemsare even more acute withtacit understandings betweentheparties."1 these Are and implicit rulesthatare notwell articulated at all? That depends. They are not if arrangements cooperativeagreements they simply involve each actor'sbeststrategic choice,givenothers'independent choices.This Nash equilibrium is, mayproduceorderand predictability-that Genuine regular behavior and stable expectations-withoutcooperation.12
witha secret accords,beginning cooperation,the United States and Israel have signedinformal sometimesmakingit are necessarily incomplete, agreementin 1951. Even so, such agreements According to Blitzer, "U.S. law cheating from permissibleactivity. difficult differentiate to . enforcement officials . . long suspected that Israel was playingfast and loose withthe longbarringcovertoperationsagainsteach other.Yes, thereis standingU.S.-Israeli understanding and allies. But thatis a farcryfrom goingon, even amongveryclose friends alwayssome spying Thus, there is a huge intelligence community. country's actuallyplantinga 'mole' in a friendly operations, theone hand,and the actual on intelligence-gathering difference betweenunobtrusive and actorscan use sanctions on running paid spiesin each other'scountry, theother."Overtime, of of and to signalthe limits theirtolerance.But these contingent obligations exhortation specify to Jay Story Jonathan of TerritoryLies: TheExclusive of remain. See WolfBlitzer, ambiguities surely will (New York: for Pollard-The AmericanWhoSpiedon His Country Israeland How He WasBetrayed Spy Harper & Row, 1989), p. 163; and Dan Ravivand Yossi Melman,Every a Prince:The Complete 1990),pp. 77 ff. Community (Boston: HoughtonMifflin, History Israel'sIntelligence of for 9. The State Department's1981 statement, example,that the United States "would not To if is commitment. SALT II treaty theSovietsreciprocated an informal undercut"theunratified The State Department has unambiguously committed international its lawyers, statusis clear-cut. pending the United States by using the standarddiplomaticlanguage of obligationto a treaty the ratification. what about the domesticpoliticalstatusof thatpromise?The debate within But the State raged for anotheryear before the Presidentpubliclyratified Reagan administration Departmentposition.Even then,the Congressand courtsneed not be bound by these executive branchstatements. on 10. Recognizingthese limitations oral bargains,domesticcourtsrefuseto recognizesuch for contracts. There is no incentive written creatinga powerful bargainsin manycases, thereby to agreements. suchincentive avoidoral bargainsin interstate 11. Accordingto Downs and Rocke, "A state bargains tacitlywith another state when it on its to attempts manipulatethe latter'spolicychoices through behaviorratherthanby relying of words,are the crucialform diplomaticexchange."Actions,not diplomatic formal informal or coercion. and their aim is joint, voluntary cooperation ratherthan outright communications, states' strategic is information affects Downs and Rocke's contribution to show how imperfect of estimates others' armsraces. Their focusis on uncertain choices and mayproduce inadvertent and specificactions (either completed or intended), and not on the strategies, preferences, worksof and otherinformal bargains.See the following ambiguousmeaningof tacitagreements and ArmsControl,"World Politics39 George W. Downs and David M. Rocke: "Tacit Bargaining of (Ann Arbor:University Arms Races,andArmsControl (April 1987),p. 297; and TacitBargaining, MichiganPress,1990),p. 3. A of of 12. See JonElster'sdiscussion "the twoproblems social order,"in The Cement Society: of Press, 1989), chap. 1. Elster's key Studyof Social Order (Cambridge: Cambridge University fivemain distinction between regularbehavior patternsand cooperation. He distinguishes is physical bearing costs of externalities, varieties of cooperation: helping others, voluntarily collaborationin joint ventures,mutual agreementsto transfer rights(private orderings),and In deviating). conventional equilibria(in whichno partycan improveits outcomeby unilaterally this article,my discussionof international cooperation focuses only on reciprocalcontractual of and where the possibility profitable defection exchanges,whichinvolvefutureperformance arise. might

500 International Organization tacit cooperation involves more. is basedon shared It something expectations thateach party can improve own outcomeif its strategic its choicesare modifiedin expectationof reciprocal changes by others.13 Shared can "understandings" arisein either case. Theyare nota uniquemarker of cooperative What distinguishes agreements. whether tacitor cooperation, are forms mutual of explicit, thesubtle reliance thepossibilities betrayal and of andregret. The central pointhere is not taxonomic, presenting of definitions tacit and informal arrangements other to bargains The simply classify them. goalis to understand how different kindsof agreements be used to order can international relationships. meansof international The are cooperation freand quently to informal, it is important exploretheir rationale, uses, and limitations. thesametime, should mistake shared At we not all understandings for informal voluntary, bargains. Informality understood a device minimizing impediments isbest as for the to at and international cooperation, both the domestic levels.What are the impediments? And what are the advantages informal of in agreements them? informal addressing First, are flexible treaties. than bargains more They arewillows, oaks.Theycan be adaptedto meetuncertain not conditions and shocks."One of the greatestadvantages an informal unpredictable of to instrument," in according a legalcounselor Britain's Foreign Office, the "is ease with it which canbe amended.""4 treaties often contain Although clauses is permitting renegotiation, process slowand cumbersome is nearly the and This can always impractical. point be putinanother, obvious less informal way: makefewer agreements informational demands theparties. on Negotiators neednottry predict future all to states comprehensively and for contract them. becauseinformal do Second, elaborate arrangements notrequire ratification, can and if they be concluded implemented quickly needbe. In complex, rapidly changing environments, is a particular speed advantage. informal Finally, are less agreements generally publicandprominent, even whenthey notsecret. are Thislower has profile important for consequences democratic bureaucratic oversight, and control, diplomatic Inforprecedent. mal agreements escape thepubliccontroversies a ratification can of debate. can unilateral They avoidthedisclosures, and "understandings," amendments that sometimes inthat arise Becauseoftheir lower openprocess. profile, they are also more tightly controlled the government by bureaucracies that negotiate implement agreements lessexposed intrusion other and the and to by
13. In tacitcooperation, one party effect in takes a chance in the expectation thatanotherwill simultaneously an equivalent take bothbetter Neitherparty chance,leaving off. takessuchchances when it maximizesunilaterally and independently. Stable expectations can arise in eithercase, based upon stable Nash equilibria.It is important to exaggeratethe scale of international not cooperationby calling all shared expectations"cooperation." They may be nothing more than unilateral maximizing. 14. Anthony Aust, "The Theoryand Practiceof Informal International Instruments," Intemationaland Comparative Law Quarterly (October 1986),p. 791. 35

Informal agreements 501 international issues,such as environagencies.Agencies dealingwithspecific agreements seal to can intelligence, use informal mentalpollutionor foreign and avoidingclose scrutiny quiet bargainswith their foreigncounterparts, agendas. agencieswithdifferent by activeinvolvement othergovernment also nationalcommitment mean and the absence offormal The lowerprofile are as precedents. They thatinformal agreements less constraining diplomatic as so do notstandas visibleand generalpolicycommitments, treaties oftendo. implications an of In all these ways, the most sensitiveand embarrassing agreementcan remainnebulous or unstatedforboth domesticand internathem. tionalaudiences,or even hiddenfrom a come at a price,and sometimes very benefits Yet all of these diplomatic also meansthattheyare more of agreements highone. The flexibility informal easily abandoned. Avoidingpublic debates conceals the depth of national debates can also serveto mobilizeand Ratification supportforan agreement. in These policy interested an agreement. constituencies integrate multiple the networksof public officials(executive, legislative,and bureaucratic) and stage. Joint private actors sustain agreementsduring the implementation communiques and executive agreementssidestep these basic democratic means that the final agreementsare less processes. This evasion typically reliableforall participants. These costs and benefitssuggestthe basic reasons for choosinginformal agreements: (1) (2) (3) (4) and visiblepledges, thedesireto avoidformal thedesireto avoidratification, or the ability renegotiate modify circumstances to as change,or theneed to reach agreements quickly.

are and Because speed, simplicity, flexibility, privacy all commondiplomatic used frequently. agreements requirements, would expectto findinformal we we Because the associated costs and benefits circumstances, varyin different a of and informal agreements. would also expectto find distinct pattern formal used to we varioustypesof informal agreements Finally, would expectto find meetparticular needs. and agreements. This articleexaminesthe strengths weaknessesof informal on constraints international It is an inquiryinto the neglectedinstitutional devices to overcomethem.It considersthe cooperation-and the imperfect as basic choicesbetweentreatiesand informal instruments, well as thechoices all kindsof informal arrangements, of whichcan be used to amongdifferent of expresscooperationamong states.Finally,it asks what these varied forms to cooperationcan tell us about the more generalimpediments international to The aim here is to use the choiceofforms agreement explore of agreement. affairs particularly and of some problems rationalcooperationin international dimensions. their contextual and institutional

502 International Organization and thelimitsofinternational Self-help agreement from widevariety forms express a to When states they of cooperate, canchoose theircommitments, and expectations. The most formalare obligations, bilateral multilateral in and states treaties, which acknowledge promises their as binding commitments fullinternational with legal status.At the other extreme tacitagreements, whichobligations commitments are in and are implied inferred notopenly or but declared, oral agreements, which and in In bargains expressly are stated notdocumented. between a variety but lie of to written instrumentsexpress national with obligations greater precision and openness thantacitor oral agreements without fullratification but the and that formal Theseinformal national pledges accompany treaties. arrangements from range executive and agreements nonbinding treaties joint to declarations, final memoranda understanding, agreeof and communiques, agreed minutes, mentspursuant legislation. to Unliketreaties, these informal agreements effect comeinto without ratification do notrequire and generally international or publication registration. differ form political in theseagreements and Although intent, scholars legal view is that international rarely distinguish amongthem.The dominant whatever theirtitle,are legally agreements, binding upon the signatories, unlessclearly statedotherwise. if contain Thus,informal agreements, they are with studied explicit promises, conflated treaties. Theyare rarely directly, for of such except thecuriosity "nonbinding" Final agreements as theHelsinki

Thisdistinction between agreements legally that bindand agreements that do notis a traditional It is central thetechnical one. to definition treaties of codified theVienna in Convention theLawofTreaties. on Article states 26 that treaties "binding are be upontheparties" and "must performed them in by textson international emphasize binding law good faith.",16 Similarly, the natureof treaties and, indeed,a wide rangeof otherinternational agreeThe implicit claimis thatinternational agreements a status have similar to domestic which binding enforceable. claimis seriously are and This contracts, misleading. is a faulty It and legalistic characterization international of
15. See, forexample,Oscar Schachter,"The Twilight Existenceof Nonbinding International Agreements," AmericanJoumalof Intemational Law 71 (April 1977), pp. 296-304; Michael J. Glennon, "The Senate Role in TreatyRatification," AmericanJoumalof Intemational Law 77 (April 1983), pp. 257-80; and Fritz Munch,"Non-Binding in Agreements," The Encyclopedia of PublicIntemational Law, vol. 7 (Amsterdam: North-Holland, 1984), pp. 353-57. The one general (and quite valuable) legal treatment informalagreementsis "The Theory and Practice of of Informal International Instruments" Anthony in by Aust,a practitioner theBritish ForeignOffice. 16. The Vienna Convention the Law of Treatieswas opened forsignature 23 May 1969 on on and entered into force on 27 January1980, after ratification thirty-five nations. See UN by document A/CONF. 39/27,1969. 17. See, forexample,Lord McNair, The Law of Treaties (Oxford:ClarendonPress, 1961); and TaslimElias, TheModemLaw of Treaties (Dobbs Ferry, N.Y.: Oceana Publications, 1974). ments.17

Act.'5

Informal agreements503 agreements practice is also a poorguideto why in and states sometimes use treaties other and times informal use meansto express agreements. Although international agreements contracted are commitments, simple any to analogy is domestic contracts mistaken severalreasons.First, domestic for in legal systems, binding agreements adjudicated enforced courts, are and by backed by theinstruments ofstate power. judicial This is It includes, power wide-ranging. among other things, right interpret parties' the to at the the intentions thetime bargain was initially made,theright decidewhether agreement to an exists or legally is impermissible becauseitis procedurally flawed violates or public and the right interpose to contract policy, clauses to deal with missing the Most fundamentally, courtscan hold parties unforeseen conditions. responsible theirpromises, for whether thosepromises were originally intended contracts not, cansettle as or and their When meaning.18 parties discuss compliance after agreements beensigned, bargain theshadow have in they of lawandjudicial enforcement. and can to Individuals corporations appealto thecourts determine whether an ostensible one or perhaps given full orally without documentation, promise, is actually binding, withspecific obligations. courts thustransmute The can informal incomplete or agreements formal into obligations. Thereis simply no at level."9 legalbattle The equivalent theinternational between Texaco and Pennzoil illustrates judicialpower. this Theircase hinged themeaning on of Pennzoil's in to Oil. Was their "agreement principle" buyGetty agreement the was eventhough final contract never The question arose binding signed? because,soon afterthe agreement been reached,another had company, a bid Texaco indemnified Getty and its Texaco,mounted higher forGetty. the purchase.20 largestshareholders againstany lawsuitsand completed Pennzoil thensuedTexaco.The size ofthecompanies meant that stakes the the Pennzoil over$10 billion thefinal and wereunusually awarded high: jury
18. For a systemof contractlaw to be effective, parties cannot simplyabandon their the commitments unilaterally. Or, rather,theycannot abandon these commitments withoutfacing legalpenalties.Reflecting understanding, keydisputesin contract revolve this the law aroundwhat a constitutes binding agreement and whatconstitutes appropriate an penalty nonperformance. for International legal scholarship largelyavoids these fundamental issues, and it says all too little about relatedissuesof renunciation, violation, and monitoring agreements. of 19. Incompletedomesticagreements can be filledin by courtdecisions.Incompleteinternationalagreements remainincomplete. Theyare beyondthe reach of international courtdecisions, much less enforcement. For an astute discussionof the weakness of treatiesthat contemplate " further, detailed negotiations, RichardBaxter,"International see Law in 'Her Infinite Variety,' Intemational and Comparative Law Quarterly (October 1980), p. 552. In thesegeneraltreaties, 29 Baxtersays,the individual provisions "are pacta de contrahendo, whichcannotbe enforced the if can partiesdo not reach agreement. There is no wayin whichan agreement be forcedupon them and thereis likewiseno way in whichtheycan be compelledto negotiate.The assertionthatthe to or to in is duty negotiate to concludean agreement impliesa duty negotiate good faith an empty one.... In the relationsof States,a complaint thatnegotiations have notbeen carriedon in good faith mererhetoric." is 20. For an accountof thepurchaseand thelitigation, Thomas Petzinger, Oil and Honor: see Jr., The Texaco-Pennzoil Wars(New York: Putnam,1987).

Organization 504 International was settlement for$3 billion.But thestakeswerehighforanother out-of-court questionsabout the legal statusof reason as well. The case raised significant used in businessas precursors whichare commonly in ''agreements principle," was unprecedented.But The size of Pennzoil's victory to formalcontracts. there was nothingunprecedentedabout the power of the courts to settle even exists, a whether contract disputessuch as this,to determine contractual its and to ensurecompliancewithanydamage awards,however to infer terms, large." of province domestic is of settlement suchconflicts theroutine The definitive in and obligations specific to Courtsare empowered decide rights legal systems. and outright negligence, disputes.They can sortout the inevitablemistakes, They can set a price to be paid fornonperforfraudthatbedevil agreements. its mance. In unusual cases, theycan order a partyto perform contractual We need them("specificperformance"). the courtsinterpret as obligations, herewiththisbodyoflaw in anydetailor withimportant notconcernourselves impactof But differences. we shouldrecognizethefundamental cross-national on exchangerelationships. judicial authority Whetherthe issue involvessimple promises or complicatedcommercial by of compulsoryarbitration courts the availability effective, transactions, It by and facilitates agreements. does so, in thelast resort, compelling supports by adherence to promises privatelymade or, more commonly, requiring Moreover,the prospectof such for payment promisesbroken.22 compensatory colorsout-of-court bargaining. enforcement They are of There is no debate over the propriety thesejudicial functions. crucial in complex capitalisteconomies in which independentagents work togetherby voluntaryagreement.What legal scholars debate is not the and theunderlying content powerbut its substantive of propriety enforcement At thatshouldgoverndamage awardswhen promisesare broken.23 principles
by Oil, complianceissueswerecomplicated thepossiblesize ofany 21. In thedisputeoverGetty awards.In this any requirebondsto be postedcovering final againstTexaco. Courtsoften judgment of size-well beyondthe capacity a bondingagency-was required. case, a bond ofunprecedented elementin the appeals processand scale of Texaco's bond was an important The unprecedented costs that the settlement. The disputealso illustrates hightransactions the ultimateout-of-court and majorlitigation-coststhatdiscouragelitigation encouragethe establishment can accompany Besides the directcosts of relationships. for of institutions the privategovernanceof contractual the thusreducing operations, aboutTexaco's continuing the litigation, disputeraiseduncertainties to (withoutadding commensurately Pennzoil's price). One company'sstock price significantly wealthofTexaco and Pennzoilbysome indicates thatthelegal disputereducedthecombined study See the of two-thirds thissumwas regainedafter finalsettlement. David $3 billion.Approximately Resolutionand Financial Distress: "The Costs of Conflict M. Cutlerand LawrenceH. Summers, of RandJoumal Economics19 (Summer1988),pp. the Evidencefrom Texaco-PennzoilLitigation," 157-72. it is for 22. This backing promises qualifiedin at least twosenses.First, leaves aside theexpense judgment). and opportunity costsof usingthe courts(some ofwhichmaybe recoveredin the final of to can be promises somehow demonstrated thesatisfaction Second,itassumesthatthecontested noted. this hurdle,as Goldwyn For a third party. oral promises, maybe a difficult oppositepoles in thisdebate. Fried arguesthatthe commonlaw 23. Fried and Atiyahrepresent To exchange. of rather thanon commercial is ofcontracts based on themoralinstitution promising, of of the sustainthisinstitution, recipients brokenpromisesshouldbe awardedtheirexpectations

Informal agreements 505 by shouldreceivethe coststheyincurred thevery least,it is argued,recipients and view,in bothlegal scholarship relying a brokenpromise.24 majority on The of more.It demandsthattherecipients common courts, law requiressomething promisesreceive the benefits theymightreasonablyhave expected had the promises been kept.25 Whateverthe standardfordamages,it is clear thatthe courtsoffer political of backing for the exchange of promises and, indeed, for the institution promisingin all its facets. Their role provides an importantmeasure of protectionto those who receive promises. It diminishesthe tasks of selfand contractual lowersthe costsof transactions, thereby promotes protection, agreements exchangein general. and is To lower the burdensof self-protection not to eliminatethementirely. The Using local courtsto sustain agreementsis oftencostlyor impractical. of and is These costsand enforcement contractual rights obligations imperfect. willgo uncompenuncertainties raise the possibility thatbreachesof contract the sated or undercompensated. Knowing that, partiesmustlook to themselves forsome protection It againstopportunism.26 is also truethatdomesticcourts theirown independent do not become involvedin contractdisputesthrough initiatives. Theyare called upon bypartiesto the dispute-at the parties'own initiative, theirown cost,and at theirown risk.In thatsense, access to the at of Like these other courtsmaybe seen as an adjunctto otherforms self-help. it and theresults uncertain. forms, is costly But the factthatself-help commonto all agreements is does not eradicate bargains. the fundamental differences between domestic and international and Hangingover domesticbargainsis the prospectofjudicial interpretation are settledin courtor not.27 There is simply whether disputes the enforcement, in agreements. course, the Of no analogue forthese functions international seekjudicial rulings or to an interstate mutualconsent, by parties disputemay,
profit. Atiyah arguesthatcourtdecisionshave movedawayfrom strict this emphasis, whicharose in the nineteenth century, and returnedto an older notion of commercialpractice,which limits awardsto thecostsincurred relying brokenpromises. in on See CharlesFried,Contract Promise: as A Theory Contractual of Obligation (Cambridge, Mass.: HarvardUniversity Press,1981); Patrick S. Atiyah, FromPrinciples Pragmatism to (Oxford:ClarendonPress,1978); and Patrick Atiyah, S. The Riseand Fall ofFreedom Contract of (Oxford:ClarendonPress,1979). 24. For the classicstatement, Lon L. Fuller and WilliamR. Perdue,"The Reliance Interest see in Contract Damages," parts1 and 2, Yale Law Review, 46, 1936,pp. 52-96 and 373-420. vol. 25. This is usuallya monetary award. Occasionally, is a requirement perform specific it to the promisesin the contract. See JohnAdams and Roger Brownsword, Understanding Contract Law (London: Fontana, 1987),p. 144; and Fried,Contract Promise. as 26. The courtsthemselves require some efforts self-protection. at Once a contracthas been the is the breached,forinstance, "innocent"party expectedto takereasonableactionsto minimize to of damagesand cannotwinawardsthatcovera failure do so. For the efficiency implications this Law legal doctrine,see AnthonyKronman and Richard Posner, The Economics of Contract (Boston: Little,Brown,1979),pp. 160-61. in 27. See RobertH. Mnookinand Lewis Kornhauser, "Bargaining the Shadow oftheLaw: The Case of Divorce," Yale Law Joumal88 (April 1979), pp. 950-97. Mnookin and Kornhauseralso concludethattheimpactofdiffering arrangements divorcesettlements on cannotbe specified legal of withprecision.They attribute thatto a more generaltheoretical gap: a limitedunderstanding howalternative outcomes. institutional arrangements affect can bargaining

Organization 506 International statesmayalso agree in advance to In treaties, privatearbitration. multilateral These proceduresmay have teeth. use proceduresfor dispute resolution.28 They can raise the diplomaticcosts of violationsand ease the burdens of For circumscribed. the most are But the punishments also highly retaliation. or certainlimitedacts of self-enforcement defineand justify part,theysimply an from agreement At retaliation. most,theymayforcea violatorto withdraw of That giving thebenefits participation.29 can up or a multilateral organization, to be punishment, be sure, but it falls far shortof the legal sanctionsfor are of There,the rights withdrawal accompanied domesticcontracts. violating of by externalenforcement damages,usuallybased on disappointedexpectations of profit.The fact that all agreementscontain some elements of shouldnotobscure for governance and self-protection someinstitutions private bargains.30 betweendomesticand international thesebasic differences contractsbut also set Domestic legal systemsnot only aid in enforcing Statutes boundarieson the scope and natureof privateagreements. effective A orderingof relationships. and court rulingslimit the private,voluntary to portion of criminallaw, for example, is devoted specifically significant and punishingcertain categories of private agreements,fromprostitution drugs.The rationaleis thatlargerpublicpurposes to gambling the sale ofillicit should overridethe immediateparties'own desires:theirbargainsshould be rentcontrol, usury, insidertrading, Civillaws governing barredor constrained. cartel price-fixing, homosexual marriage,and indenturedservitudeare all directed at preventingprivate bargains, for better or for worse.31Such
Their powersmaybe agreement. 28. These are oftenad hoc proceduresdesignedfora specific and Trade quasi-judicial,as in the dispute mechanismsof the General Agreementon Tariffs as (GATT), or merelyconsultative, in the proceduresof the U.S.-Soviet StandingConsultative in bodies attachedto Commission, established SALT I and SALT II. The presenceofquasi-judicial And it pointsto of adjudication. once again,the limits international indicates, specific agreements cooperation.See RichardB. Bilder, of the ad hoc meansdevisedto manage therisks international of (Madison: University WisconsinPress,1981), pp. Managing RisksofIntemationalAgreement the 56-61. whether is includedas a legal it 29. A signatory alwayshas the practicaloptionof withdrawal, Termination: of or see optionin thetreaty not.For legal analyses, Arie E. David, TheStrategy Treaty Press,1975),pp. 203-16; and and Retaliations (New Haven,Conn.: Yale University Lawful Breaches Herbert W. Briggs,"Unilateral Denunciation of Treaties: The Vienna Conventionand the Law 68 (January1974), pp. AmericanJoumal of Intemational International Court of Justice," 51-68. or that principles, private grounds libertarian 30. There havebeen proposals, based on efficiency domestic laws and contractsand that they be agents play a much larger role in enforcing paid eitherbyviolatorsor the state.These proposalscannotbe applied compensated bounties, by modification, since they ultimatelyenvision to internationalagreementswithout significant and See authoritative judicial interpretation enforcement. GaryS. Becker and George J. Stigler, Joumalof Legal Studies3 Malfeasance and Compensationof Enforcers," "Law Enforcement, An (January1974), pp. 1-18; Gary S. Becker, "Crime and Punishment: Economic Approach," Joumalof PoliticalEconomy76 (March-April 1968), pp. 169-217; and George J. Stigler,"The Economy78 (May-June1970),pp. 526-36. Enforcement Laws,"JoumalofPolitical of Optimum of might pointout in theirstudy divorcelaws,"A legal system 31. As Mnookinand Kornhauser of Untilrecently, divorce allowvarying upon dissolution the marriage. degreesof privateordering in "Bargaining severely." See Mnookinand Kornhauser, private ordering law attempted restrict to the Shadow oftheLaw," pp. 952-53.

agreements 507 Informal legal of elements domestic themare central and restrictions therulesgoverning systems. the the Similarly, law can restrict formof agreements.One clear-cutand exampleis the U.S. Statuteof Frauds,whichrequiresthatcertain prominent if is Accordingto the statute, a contract larger be agreements put in writing. its or has party made payment performed obligations, than$500,and ifneither agreements.Although there are then the courts will only enforce written rule, it does underscorethe capacityof exceptionsto this straightforward particulardocumentation, by domesticlaw to channel agreements, requiring or language.32 forexample,or witnesses specific on Again, there are simplyno equivalent restrictions either the formor international The domainofpermissible agreements. substanceofinternational This absence of agreementsis simplythe domain of possible agreements.33 legislatureand is restraint not due simplyto the lack of an international theyare absent). It is due equallyto theabsence of an executive (thoughsurely domestic on of effective system adjudication.One majorlimitation prohibited is bargainsare notenforced penalties, thatillicit aside from direct any bargains, to themmore costly execute. suchbargainsbymaking bycourts.This restricts To implement illegal contractsrequires special precautionsand sometimes a arrangements: of entails the establishment a broader set of institutional criminal enterprise.34 are and These highcosts of self-enforcement the dangersof opportunism importantobstacles to extralegal agreements.Indeed, the costs may be as if leave unsolvedsuchbasic problems moralhazardand time prohibitive they of bargainfeatures interstate The inconsistency. same obstaclesare inherent are ing and mustbe resolvedif agreements to be concluded and carriedout. the orderings, transparency themdependson theparties'preference Resolving and information), the private and choices (asymmetrical of theirpreferences It mechanisms up to secure theirbargains.35 has littleto do, set institutional however,with whether an internationalagreementis considered "legally on binding"or not. In domesticaffairs, the otherhand,theselegal boundaries

be thatcontracts put in writing. 32. Three standardreasons are givenforthe legal requirement is cautionbeforean agreement completed.Second, it shouldmake clear to First,it shouldimpart later arise, it Third,if disagreements specific obligations. the partiesthattheyhave undertaken by shouldprovidebetterevidenceforcourts.See theclassicanalysis Lon L. Fuller:"Consideration of vol. 41, 1941, pp. 799-824; and Anatomy Law (New York: and Form," ColumbiaLaw Review, Praeger,1968),pp. 36-37. The worthnotingon the legal formof international agreements. 33. There is one restriction withthe United thathave been formally registered World Court will onlyconsideragreements the wouldinfluence body,thisrestriction enforcement Nations.IftheWorldCourtwerea powerful form majoragreements. of 34. Criminalorganizationssuch as the Mafia can be understoodpartlyas an institutional are criminal serviceswhenthe bargainsthemselves illegal. responseto the problemsof providing see arrangements, Peter Reuter,Disorgaeconomic studyof such institutional For a fascinating Mass.: MIT Press,1983). and IllegalMarkets theMafia (Cambridge, nizedCrime: 35. On the mechanismsof private governance,see Oliver R. Williamson,The Economic (New York: Free Press,1985). Relational Contracting Firms, Markets, of Institutions Capitalism:

Organization 508 International between selling contraband make an enormous difference-thedifference in whiskey Al Capone's Chicago and sellingthe same productlegallytenyears later. is affairs, then,the term"bindingagreement" a misleading In international This hyperbole.To enforcetheirbargains,states must act for themselves. thatinternational politicsis a realmof limitation crucial:it is a recognition is powers.For that reason, it is misleadingto understand contesting sovereign as legal terms, do) formal, typically in purely lawyers treaties(as international that instruments somehowbind statesto theirpromises.It is quite true that phrasessuch as obligation, chiefly the treatiesincorporate languageof formal with specificcommitments. Such "we shall" and "we undertake,"together But featureof moderntreaties. languageis a defining conventional diplomatic thatlanguage cannot accomplishits ambitioustask of bindingstatesto their for limitation bargaining international on is promises. This inability an inherent mustbe like all international agreements, cooperation.It means thattreaties, enforced endogenously.

do? Whatdo treaties

is in The chiefreason,I think, thatstateswishto signal agreements thatform? and gravityand are using a welltheir intentionswith special intensity form is understoodformto do so. The decisionto encode a bargainin treaty of the a primarily decision to highlight importance the agreementand, even and of promises. the more,to underscore durability significance theunderlying in The language of "binding commitments," other words, is a diplomatic aimed at othersignatories communication and, often,at thirdparties.In the that effective or self-binding offer institutions permit absence of international a forms signify to treatiesuse conventional external guaranteesforpromises, both solemn and seriousnessof commitment. makingthat commitment By at public,the partiesindicatetheirintention, least, to adhere to a particular bargain. The effect treaties, of then,is to raise the politicalcostsof noncompliance. and That costis raisednotonlyforothersbutalso foroneself.The moreformal The the the costsofnoncompliance. publictheagreement, higher reputational written made whenthe agreement containsspecific promises, costsare highest withthe state's fullestimprimatur. States deliberpublicly seniorofficials by in from the atelychoose to impose these costs on themselves orderto benefit of others. Given the inherentconstraints of (or counterpromises actions) international theseformal pledges are as close as statescan come institutions, to precommitment-toa contractualexchange of promises. In short,one to stake the parties'reputations crucialelementof treatiesis thattheyvisibly

Whyframe If treaties not truly bind,whydo statesuse thatlanguage? do

agreements 509 Informal The violations)is a real their (because ofdeliberate pledges.36 loss ofcredibility not always a decisive one, in termsof policy loss, althoughit is certainly calculus.37 Informalagreementsare generallyless reliable and convincing The stakes are preciselybecause theyinvolveless of a reputationalstake.38 diminishedeitherbecause the agreementsare less public (the audience is officials less directly are and morespecialized) or because high-level narrower involved. information, where others' currentand future In a world of imperfect has reputation value. As a result, preferences cannotbe knownwithcertainty, a Because breaking it can be used as a "hostage" or bond to supportcontracts. it or contract even appearingto do so degradesreputation, producesa loss of it compliance,although reputational capital.The threatof such loss promotes gains cannotguaranteeit. Whetherit succeeds depends on (1) the immediate and an benefits therate (2) from breaking agreement, theloststreamoffuture of discountapplied to that stream,and (3) the expectedcosts to reputation from specific violations.39 equally.40 First,not all are witnessed.Some that Not all violationsdiscredit or are seen maybe consideredjustifiable excusable,perhaps because others have changed because circumstances have alreadyviolated the agreement, because compliance is no longerfeasible,or because the consignificantly, inference,and contexttractedterms appear ambiguous.Thus, memory, social learningand constructed meaning-all matter.Second, not all actors Some simply not have much to lose, do have a reputation worthpreserving. whether theirviolationsare visibleor not. Moreover,theymaynot choose to
little staking in for thenitrisks 36. If a statealreadyhas a poor reputation keepingitspromises, without partners and thatreputation otheragreements, its pledgeswillfailto convincefuture on all special efforts (such as bonds, hostages,or collateral) and carefulmonitoring, designed to but it suggeststhat theymaybe minimizereliance on "trust."That does not rule out treaties, disingenuous and cannotbe relied upon. Stalin and Hitler,forexample,foundtheirpact useful of gainsforeach: the division EasternEurope. The incorporation because it producedimmediate betweenthe two.The pact was usefulfor also postponeda confrontation of the new territories of promises cooperationitheld out. and simultaneous gains,notforanyfuture theseimmediate how formal, Saddam Hussein did as 37. Of course,commitments be cast aside, no matter may withIran "null and void" in 1981. The agreement, when he declared Iraq's border agreement permanent and shallbe inviolable, frontiers statedthat"land and river reachedin 1975in Algiers, even ifthatcost seems remote unilaterally, such an agreement final."There is a cost to discarding on to at thetime.It virtually rulesout theability concludeusefulagreements otherborderdisputes. Nations,1981, vol. 35 (New York: United Nations, See United Nations,Yearbookof the United A of Legal Department, Review the of 1985), pp. 238-39. See also Iran, Ministry ForeignAffairs, the of the 1983), including textof the 1975 treaty, ImposedWar(Tehran: Ministry ForeignAffairs, treaty addendum,and Iran's interpretation. to agreements. 38. In thissense,secrettreaties similar informal are in valued, there can be an equilibrium whichthe 39. In otherwords,if the futureis highly advantageofit. exceeds anyshort-run gainsfrom taking discounted)value of a reputation (current large, then it also pays to investin If the prospectivegains fromreputationare sufficiently N.J.: Princeton Theory (Princeton, See David M. Kreps,A Coursein Microeconomic reputation. University Press,1990),p. 532. 40. J.Mark Ramseyer, "Legal Rules in Repeated Deals: Bankingin theShadow of Defectionin 20 1991),p. 96. Japan,"JoumalofLegal Studies (January

Organization 510 International presumably because the costs of buildinga good name investin reputation, the stream rewards.41 of debtors, example, for Sovereign outweigh incremental value their reputationleast when they do not expect to borrow again.42 (or actorswithpoor reputations littletrackrecord) maychoose Alternatively, in about future If performance. to to invest themprecisely createexpectations is can these expectations produce a streamof rewardsand ifthe future highly Thus, the value of valued, it may be rational to make such investments.43 and clarityof both promises and reputationlost depends on the visibility on and performance, thevalue of an actor'spriorreputation, on theperceived in otheragreements. of usefulness reputation supporting designed to be a Compliancewithtreaties,as I have noted, is specifically the salientissue, supportedby reputation. Unfortunately, hostage of reputaenhanced gainfrom support. Some statesforeseelittle tionis notalwaysstrong eitherbecause the immediatecosts are too high or the ongoing reputation, knowing that too late. They maysigntreatiescynically, rewardsare too little, in but can they violatethemcheaply.Othersmaysigntreaties good faith simply rewards some change.Finally, abandon themiftheircalculationsabout future of the statesmay investheavilyto demonstrate credibility theirpromises,to gains from show that they are reliable partners,unswayedby short-term in otherwords,does not of The defection.44 general importance reputation,
thenit is rewardsare sharply discounted, 41. Again,the shadowof the future crucial.If future to rewards. paysto exploitpriorreputation disinvest) reap short-term (to debtorsin the nineteenth movedto settle century 42. Elsewhere,I have shownthatsovereign their old defaults when they contemplatedseeking new loans. Creditors had the greatest See Charles Lipson, Standing Guard: Protecting bargaining leverageat precisely these moments. Centuries (Berkeleyand Los Angeles:University of Foreign Capitalin theNineteenth Twentieth and A of California Press,1985),p. 47. See also Carlos Marichal, Century Debt Crisesin LatinAmerica: to N.J.:Princeton University Press, FromIndependence theGreatDepression, 1820-1930(Princeton, 1989),pp. 122-23. 43. The short-term price of reputation may either be foregone opportunitiesor direct that are most valuable within a specific bilateral expenditures,such as fixed investments to relationship.Williamson has explored the use of such fixed investments make credible in commitments TheEconomicInstitutions Capitalism. of in 44. The United States made such an investment reputationin the late 1970s, afterits as credibility leader of the NorthAtlanticTreaty Organization(NATO) was damaged by the first neutron bomb affair. The problemarose afterthe Carteradministration supportedand then opposed NATO's deploymentof new antitankweapons, equipped with enhanced radiation publicly, at warheadsor neutron bombs.Key European leaders had alreadydeclaredtheirsupport considerablepoliticalcost, and now theyhad to reversecourse. Afterthe crisisdied down,the II Carteradministration Pershing missiles. proposedanotherapproachto nuclearmodernization: in of The administration held fast(as did the Reagan administration) support itsnewplan. It then did so despitea rising tide of publicprotest abroad and wavering supportfrom European leaders, Accordingto Garthoff, especiallythe Germans,who had initially proposed the modernization. in was "The principal effect theneutron of weapon affair to reduceWesternconfidence American by leadershipin thealliance,and laterto lead theUnitedStatesto seek to undo thateffect another felt for itself itneeded to compensate newarmsinitiative NATO.... The Carteradministration for its handlingof the neutrondecision. It soughtto do so by respondingboldly to a perceived leadership.... Doubts about the military necessity European concernthrough exercising vigorous wereoverwhelmed of new [long-range or evendesirability deploying tacticalnuclearforce]systems Detenteand by a perceivedpolitical necessity withinthe alliance." See RaymondL. Garthoff,

agreements 511 Informal eliminatethe problemof multipleequilibria.Justas therecan be economic goods and some sellers of shoddy with some sellers of high-quality markets in goods, both of themrational,therecan be diplomaticenvironments which and some are not.45 partners some statesare reliabletreaty if self-enforcementnot ensureit. to then,can contribute treaty Reputation, in remains forcebecause, at meansthatan agreement simply Self-enforcement any given moment,each party believes it gains more by sustainingthe benefits it. thanbyterminating That calculationincludesall future agreement Enhancinga discountedto givetheirpresentvalue.46 and costs,appropriately is reputationfor reliability one such benefit.It is of particularvalue to trust transactions requiring engaged in a range of international governments these mayoutweigh and mutualreliance.Of course,othercosts and benefits can is The keypoint,however, thatreputation be used to issues.47 reputational for implications itsform. cooperationand has important international support the The choice of a formal,visible document such as a treatymagnifies self-enforcement. effects adherenceand buttresses of reputational Nations stillcan and do break even theirmostformaland solemncommitas commitments mayuse treaty ments otherstates.Indeed,theunscrupulous to or falseexpectations creating deliberately a wayof deceiving unwary partners, are less arises. (Informalagreements cheatingwhen the opportunity simply less thantreatiesand so to susceptible these dangers.Theyraise expectations in to are less likely dupe thenaive.) But statespay a seriouspriceforacting bad This theircommitments. pricecomes for faith and,moregenerally, renouncing the adversejudicial decisionsat The Hague butfrom decline notso muchfrom in national reputationas a reliable partner,which impedes futureagreeby significance ments.48 Indeed,opinionsoftheWorldCourtgainmuchoftheir reinforcing thesecoststo nationalreputation. the are of Put simply, treaties a conventional ofraising credibilitypromises way takes The price of noncompliance on nationalreputation adherence. bystaking several forms.First, there is loss of reputationas a reliable partner.A agreements in othercooperative is for reputation reliability important reaching
Relations fromNixon to Reagan (Washington,D.C.: Brookings American-Soviet Confrontation: Institution, 1985),pp. 853 and 859. The warranties. whatguaranteesthewarranty? But by 45. Firmscan guaranteequality offering it items, is simply But of itemsmaybe the threat litigation. forless expensive answerforexpensive according Rubin,"mustbe in thefamiliar to "The hostageforperformance," thefirm's reputation. on or form a quasirentstream[eitherof profits return capital]. In eithercase, the priceof the of by mustbe highenoughso thatcheating cost,and the difference productmustbe above marginal the Controlling Cost of BusinessTransactions: the firm does not pay." See Paul Rubin,Managing and Communicating, DecisionMaking(New York: Free Press,1990),p. 147. Coordinating, Agreements," Joumalof Business53 (January 46. L. G. Telser, "A Theoryof Self-Enforcing 1980),pp. 27-28. anyreputational even can 47. Thus, a singleagreement be self-enforcing, ifit is divorcedfrom issues are salient,a treaty maybreakdownifother concerns.Conversely, even whenreputational costsare moreimportant. because the state cannot use its 48. A poor reputationimpedes a state's futureagreements bond." as reputation a credibleand valuable "performance

Organization 512 International Second, the violationor about compliance.49 wherethereis some uncertainty perceivedviolation of a treatymay give rise to specific,costlyretaliation, of of simplewithdrawal cooperationin one area to broaderforms from ranging such as the sanctions.Some formalagreements, and specific noncooperation set and on GeneralAgreement Tariffs Trade (GATT), even establisha limited althoughmosttreatiesdo not. Finally, responsesto violations, of permissible treaty violationsmay recast national reputationin a stillbroader and more but a dramaticway,depicting nationthatis not onlyuntrustworthy is also a in one thatmakespromises orderto deceive. enemy, deceitful in This logic also suggestscircumstances which treaties-and, indeed, all An agreements-oughtto be mostvulnerable. actor'sreputation international is value of thatreputation the has forreliability a value overtime.The present When timehorizons and future benefits. discountedstreamof these current are valuable now.Whenhorizons are benefits considered are long,evendistant an breaking whilethe gainsfrom worth benefits are little,50 thesefuture short, and tangible. moreimmediate Thus,underpressing to are agreement likely be such as the loomingprospectof war or economic crisis,the circumstances, As discounted. a will for value of a reputation reliability be sharply long-term and mustbe consideredless profitable consequence,adherenceto agreements of treaties:theyare to a striking This points paradox less therefore reliable.51 for oftenused to seal partnerships vital actions,such as war, but theyare thatmomentbecause the presentlooms largerand the weakest at precisely discounted.52 moreheavily future is in emphasized, studies rarely though Thisweaknessis sometimes recognized, in All law. It has no place at all, however, the law of treaties. of international and typically treaties are treated equally, as legally bindingcommitments, bargains.Treatiesthatdeclare witha wide rangeof informal lumpedtogether or alliances,establishneutralterritories, announcebroad policyguidelinesare
49. "Reputation commandsa price (or exacts a penalty),"Stigleronce observed,"because it future suchas a partner's behavior, economizeson search."When thatsearchmustcoverunknown valuable. See George are thenreputations particularly withan agreement, of likelihood complying Economy69 (June1961),p. 224. JoumalofPolitical "The EconomicsofInformation," Stigler, It 50. This discountrate refersonly to the presentvalue of knownfuturebenefits. assumes can benefits also aboutfuture Greaterriskor uncertainty aboutfuture payoffs. information perfect their value. present affect from enforcement, third-party lackingeffective 51. This logic should apply to all agreements modern warfareto premoderncommerce.For an application of this approach to medieval by see economichistory, JohnM. Veitch,"Repudiationsand Confiscations the Medieval State," 46 JoumalofEconomicHistory (March 1986),pp. 31-36. allies. My pointis thatifthe 52. Of course,statesoftendo go to war alongsidetheirlong-time by issues), theirdecisionwillbe guidedlargely reputational costsare high(relativeto longer-term of independent alliance is gainsand losses. That determination largely their calculusof short-term to war are reluctant statesfacing Knowing that, treaties mutualsupport. of and agreements formal By or howeverformal sincere,by alliance partners. the on counttoo heavily priorcommitments, by strategies to same token,opponents have considerableincentives design coalition-splitting This debate overlong-term coalitionmembers. costsand stakesto individual the varying immediate in costs figuredprominently the Britishcabinet's debate over reputationversus short-term to commitments France beforeWorldWar I.

Informal agreements513 notclassified separately. Theirlegal status thesame as thatof anyother is and that treaty. itis alsounderstood, diplomats jurists Yet by alike, these three types treaty especially of are vulnerable violation renunciation. this to or For reason, Richard Baxter characterized as "soft" "weak"law, has them or noting that"ifa Staterefuses cometo theaid of another to of undertheterms an alliance, nothing force to.Itwasnever can it expected thetreaty that would be 'enforced.' ,,3 or According Baxter, to treaties announcing alliances broad policy guidelines are sustained of He onlyby perceptions mutualadvantage."4 calls them and "'political treaties" emphasizes their fragility: "They... are merely joint statements policywhichwill remainalive onlyso long as the States of mutual interest concert to their One concerned it to be in their see policies. of cannot think 'violations' suchinstruments."55 of simply shrinks arethefull of it What Baxter from implications this position: applies Baxteradmits, in to quitegenerally all kindsof international agreements. that to of effect, international ismarginal themajor law political projects states. He admits, that are concluded with expectation no of too, treaties sometimes effective to enforcement. limits judgment whathe terms He his "political treaties." are any treaties But really founded thisexpectation external on of as enforcement, opposed to self-interested adherenceand self-generated sanctions? treaties alliance weakbecausethey suchenforcement If of are lack is so international mechanisms, aremost bargains. (Thesalient exception when localcourts be usedtoenforce can is international obligations. That, however, less an exception than a confirmation the weaknessof international of If are enforcement.) "political treaties" sustained of solelyby perceptions no mutualadvantage, are all international so There is simply bargains. institutional infrastructure more. todo The realpoint to understand theseperceptions mutual of is how advantage cansupport various kinds international of and cooperation howdifferent legal such The fit forms, as treaties, intothis essentially political dynamic. environmentof contesting theories of sovereign powersdoes not mean,as realist is international irrelevant or politics wouldhaveit,thatcooperation largely to limited common causeagainst military foes.56 doesitmeanthat Nor conflict
53. See Baxter,"InternationalLaw in 'Her Infinite Variety,'" p. 550. See also Ignaz SeidlHohenfeldern, "International Economic Soft Law," Recueilde cours (Collected Courses of the Hague Academyof International Law), vol. 163,1979,pp. 169-246. " 54. See Baxter,"International Law in 'Her Infinite to Variety,' p. 551. Baxterrefers alliances and statements broad politicalintent of (such as the Yalta Agreement)as "politicaltreaties."He does notdefine term or it otherkindsof treaties. the further distinguish from 55. Ibid. 56. Realistsconsidercooperationimportant onlyone sphere:military in alliances."In anarchy, statesform alliancesto protect themselves," Walt."Theirconductis determined thethreats says by such alliancesare important, are simply consideredtheby-products they perceive."Although they of a worldfundamentally characterized conflict by and the contestforrelativegains. As Grieco and competition, bluntly puts it, "States are predisposedtowardconflict and theyoftenfail to

Organization 514 International affairs. does It and the resourcesforit are alwaysdominantin international that the bases for cooperationare decentralizedand often mean, however, legal the neither languageof treatiesnortheirputative Unfortunately, fragile. theselimitations. statuscan transcend

agreements Rationalesforinformal
Speed and obscurity on problemsof What we have concentrated thus far are the fundamental are likeless formal instruments, plaguedby Treaties, international agreements. These potentialproblems and self-enforcement. of difficulties noncompliance is enforcement costly,and is limit agreementswhen monitoring difficult, The expected gains from noncompliance are immediate and significant. legal view that treatiesare valuable because theyare bindingis traditional thesebasic and recurrent because it failsto comprehend inadequate precisely problems. To understand the choice between treaties and informalagreements, however,we need to move beyond the generic problems of monitoring, and to information incentives defect Imperfect and betrayal, self-enforcement. bargains;theydo not explainwhysome are applyto all kindsof international framed as joint declarationsand some as treaties.We thereforeneed to along and formalagreements, considermore specificpropertiesof informal advantagesand limitations. particular withtheir To begin with, treaties are the most serious and deliberate form of and are oftenthemostdetailed.As such,theyare the international agreement left the table, the After the diplomatshave finally slowest to complete.57 That usually agreementmust still win final approval fromthe signatories. The the fulldomesticprocess of ratification. means a slow passage through but from to differs country country, in complexgovernments, processnaturally and especiallyin democracieswithsome sharedpowers,gainingassentcan be or If majority if the time-consuming.58the executivelacks a secure governing
of See cooperateevenwhentheyhave commoninterests." StephenM. Walt,The Origins Alliances Among Press, 1987), p. x; and JosephM. Grieco, Cooperation (Ithaca, N.Y.: Cornell University Press, Barriers Trade(Ithaca, N.Y.: CornellUniversity to and Non-Taniff America, Nations:Europe, 1990),p. 4. formalagreements,especially major 57. Adelman emphasizes the slowness of negotiating yearsto complete;the withtheSoviets.The LimitedTest Ban Treaty(1963) tookeight agreements (1972) Treaty(1968) took more than threeyears;and the SALT I agreement Non-Proliferation (1979) took sevenyearsand stillfailedto win took morethantwoyears.The SALT II agreement See Kenneth Adelman, "Arms Control With and WithoutAgreements," Senate ratification. 63 Foreign Affairs (Winter1984-85),pp. 240-63. of and of complexagreements theproblems adaptingto 58. The slownessand difficulty ratifying The United oftenlead states to choose less formalmechanisms. meet changingcircumstances thatchoice to deal withtheirconflicts (EC) have made exactly States and European Community up The policy"and antitrust. twosides "have abandoned the idea of drawing a over"competition

Informal agreements 515 legislature significant has powersofoversight, can takemonths. also opens it It the agreement and the silent calculus behind it to public scrutinyand time-consuming debate. For controversial treaties,such as the ones ceding U.S. controlover the Panama Canal, ratification be veryslow and painfulindeed. The canal can treaties had virtually universalsupport among foreignpolicy professionals dealing with Central and South America.59But they also faced heated opposition within U.S. Senate, mainly the from conservative who Republicans, asset and getting chargedthatAmerica was givingaway a valuable strategic nothing tangiblein return. When the treatieswere presentedforratification, the 1978 midterm and pollingdata showed that electionswere approaching, some proponents werevulnerable thisissue. After on the exhaustive hearings, Senate Foreign Relations Committeereportedthe bill favorably. The treaty debate on the Senate floor was the second longest in American history; repetitive arguments draggedon through February, March,and April 1978.60 to Opponentshad a clear incentive prolongthe debate, not onlyto defeatthe treatyor weaken it with unfriendly amendmentsbut also to punish treaty in in supporters particular and theDemocraticparty generalon electionday.61 Even when agreements are much less contentious,the machineryof ratification grindslowly,as in the case of the relatively can straightforward criminal extradition betweenthe United States and Turkey.62 treaty covering Extradition treatiesare commonplace. They use standardized language,make
on to special treaty competition issues,"such as mergers and acquisitions, according theFinancial Times, "because itwouldbe too complicated, would involve and obtaining approvalofboththe the U.S. congress and EC member states.Instead,they discussedmoreflexible arrangements providing fora betterexchangeof information, regularmeetingsand discussionson current cases, and a meansof settling disputes."See FinancialTimes,17 January 1991,p. 6. 59. One reason U.S. diplomatsfavoredthe Panama Canal treatieswas that Latin American stateswereso uniformly of The disposition opposed to continued U.S. ownership thewaterway. of thisissue was crucialto America'srole in the hemisphere. numberof Latin Americanleaders A were involvedin the negotiations, and some eighteenheads of state attendedthe finalsigning The whole episode clearlydemonstrates ceremony. how "thirdparties"can have a directstakein bilateraltreaty arrangements how these diplomaticrelationships be enhanced or, more and can likely,embarrassedby frankdisclosuresduringthe public ratification process. See Robert A. Pastor and JorgeG. Castanieda, Limitsto Friendship: The United Statesand Mexico (New York: Knopf,1988),pp. 159-61. 60. J. Michael Hogan, The Panama Canal in AmericanPolitics:DomesticAdvocacyand the Evolution Policy(Carbondale: SouthernIllinoisPress,1986),pp. 190-91 and 200-205. of 61. This keytreaty won ratification a singlevote, and onlythen afterintensepresidential by lobbying and some significant amendments. The Carter administration's politicaldilemmawas nicelysummarizedby the Republican leader in the Senate, Howard Baker: "The Canal has a constituency the treaty no constituency." Timothy and has See Stater,"Climax: Senate Ratification,1977-1978,"in G. HarveySummand Tom Kelly,eds., TheGood Neighbors:America, Panama, and the1977 Canal Treaties (Athens:Ohio University CenterforInternational Studies,1988), pp. The The 90-91; and George D. Moffett, Limits Victory: Ratification thePanama Canal Treaties of of (Ithaca, N.Y.: CornellUniversity Press,1985). 62. See "Treatyon Extradition MutualAssistancein Criminal and MattersBetweentheUnited Statesof Americaand the Republic of Turkey, withAppendix,SignedJune7, 1979,Enteredinto Force January 1981," in United 1, StatesTreaties Other and IntemationalAgreements, 32, part3 vol. D.C.: Government (Washington, Printing Office, 1986),pp. 3111 ff.

Organization 516 International suspectsforpolitical for standardexceptions(refusing, example,to extradite crimes), and leave room for both policy discretion and ordinarycourt withTurkey, unusual about the U.S. treaty There was nothing procedures.63 nor was thereany special domesticoppositionto it. It was signedon 7 June proceeded at a statelypace. The President 1979. From there, ratification transmitted to the Senate in earlyAugust.The Senate Foreign Relations it on as Committeeacted quickly, such mattersgo, and reportedfavorably 20 November1979. The fullSenate gave its consenteightdayslater.Turkeydid for not complete its ratification anotheryear, in late November 1980. The between the governments took place two formalexchange of ratifications the proclaimed treaty, weekslater.At theend ofDecember,theU.S. President 1981,some eighteenmonths and it enteredintoforcethe nextday,1 January had been signed.64 after initialdocuments the more convenient prefersimpler, It is littlewonder,then,thatgovernments that preferinstruments theycan It instruments. is plain, too, thatexecutives withoutlegislativeadvice or consent.But there are controlunambiguously, prerogatives, some rooted in constitutional important domesticconstraints, and some in the shifting balance of domesticpower. some in legal precedent, had no choice the of To cede control thePanama Canal, forinstance, President is affairs broad, but not His authority conductforeign to but to use a treaty. to territory Panama broad enough to hand over the canal and surrounding extradition betweenthe United criminal without Similarly, Senate approval.65 at needed a treaty, least on the U.S. side. Americancourts, States and Turkey will defendants without commonlaw precedent, simply notextradite following done at the discretion political of Informal extradition, thisformal instrument. is authorities, permittedin some countrieswithjudicial systemsbased on and mostothercommonlaw Roman civillaw. But the United States,Britain, treaty arrangements.66 countries reciprocal requireexplicit, of on whichbears directly the civilrights accused Aside fromextradition, of That is the the affect form international agreements. criminals, courtsrarely to whichare normally trueeven forU.S. courts, quite willing reviewpolitical in involvement foreign to policyissuesand hold decisions.Theytry avoid direct to thisnarrowline even when largerconstitutional questionsarise. They have
Law (Manchester,UK: ManchesterUniversity in 63. I. A. Shearer,Extradition Intemational Press,1971). MattersBetweentheUnited and 64. See "Treatyon Extradition MutualAssistancein Criminal StatesofAmericaand the Republicof Turkey." It remains ambiguous. is a constitutional as mustbe submitted treaties whatagreements 65. Just question, course,butalso a questionof thepoliticalbalance of powerbetweentheCongressand of HamiltonJordan, announced that the President.At one point,PresidentCarter'schiefof staff, were treatiesor not. He "could Carter would decide whetherthe Panama Canal agreements and at the propertimehe'll or present[theaccords]to the Congressas a treaty, as an agreement, in on makethatdecision."Interview "Face theNation,"CBS News,citedbyLoch K. Johnson The the CongressConfronts Executive(New York: New York Agreements: Making of Intemational Press,1984),p. 141. University UK: (Chichester, of TheLaw and Practice Extradition 66. Ivor Stanbrookand Clive Stanbrook, Barry Rose, 1980),p. xxvii.

Informal agreements 517 for to the agreements, done little, instance, restrict widespreaduse ofexecutive to whichevade the Senate's constitutional right give"advice and consent"on formal treaties.67 agreements Despite the courts'reluctanceto rule on these issues,informal of for do raise important questionsabout the organization stateauthority the conduct of foreign affairs.Informal agreementsshift power toward the In and awayfrom legislature. recentdecades, the U.S. Congress the executive responded by publicly challengingthe President's right to make serious the Senate. It also without at least notifying internationalcommitments conflicts passing by disputedthe President'scontrolover undeclaredforeign theWar PowersResolution.68 Duringthe finalyearsof the VietnamWar, when the President'sauthority over foreignaffairs was most bitterly contested,a congressionalcommittee agreementsand discovereda "vast mass of investigated use of informal the ... of and commitments, correspondence in whichundertakings agreements, committee found one sortor another[were]made."69 Anothercongressional withforeign governcontracted that"there [had] been numerousagreements ments in recent years, particularly nature,which agreementsof a military The result was a to remain[ed] wholly unknown Congressand to thepeople."70 law-the Case Act-which promoted congressionaloversightof informal It to agreements. requiredthat the State Departmenttransmit Congressall of within including written versions oral agreements, international agreements, This law fell shortof equating informal two monthsof their conclusion.71 withtreaties, sinceit did notrequirecongressional approvalforall agreements But requiredfortreaties.72 it did serve informal bargains, is constitutionally as notice that informalagreementshad proliferatedunacceptablyand had bid for The assumedimportant implications policymaking. Case Act tentatively and to open theseback channelsto legislative supervision broaderdebate.

67. The U.S. Constitution, ArticleII, Section2, providesthatthe President"shall have power, providedtwo-thirds the of by and withthe Advice and Consentof the Senate, to make treaties, issues, see Louis Henkin, Senators presentconcur." For a detailed studyof the constitutional (Mineola, N.Y.: FoundationPress,1972). Foreign and Affairs theConstitution StatesCode 1541-48,1980. 87 68. See theWar PowersResolution, Stat.555, 1973; and 50 United 69. See Baxter, "InternationalLaw in 'Her InfiniteVariety,'" pp. 554-55. See also U.S. of Agreements: Congressional Oversight Executive Congress,Senate Committeeon the Judiciary, 2d Hearings S. 3475,92d Congress, sess., 1972. on on of 70. U.S. Congress, Senate Committee ForeignRelations,Transmittal ExecutiveAgreements to Congress, 2d Senate Reportno. 92-591,92d Congress, sess., 1972,pp. 3-4. in 71. The Case Act passed the Senate and House overwhelmingly 1972 and has been amended in regulations 1981. severaltimessince then.The State Department finally issued implementation StatesCode 112b, see The originalact was Public Law 92-403.For the amendedversion, 1 United part 181; and 46 Federal see 1988. For implementing regulations, 22 Code ofFederalRegulations, 13 Register, July 1981,pp. 35917 ff. of The Senate, in activism. of 72. A detailed study the Case Act showsthe limits congressional the But agreements. during periodfrom particular, wanteda moredirectrole in shapinginformal to agreements the 1950sthrough 1980s,therewas nevera majority wouldrequireinformal the that thesepolitical be submitted ratification. Case Act succeeded,in part,because itrecognized The for chap. See The of limits and requiredonlynotification. Johnson, Making IntemationalAgreements, 5.

Organization 518 International agreementsare oftenchosen because they then,informal To summarize, to allow governments act quicklyand quietly.These two rationalesare often for and each is sufficient in but intertwined, each is important its own right, cooperation. meansofinternational informal choosing Uncertainty and renegotiation reason: different may also be favoredforan entirely agreements Informal This to and are they moreeasilyrenegotiated less costly abandon thantreaties. of about the distribution is flexibility usefulifthereis considerableuncertainty In benefits under a particular agreement. economicissues,thisuncerfuture taintymay arise because of a shiftin production functionsor demand or products, a fluctuation or schedules,theuse of new rawmaterials substitute or conditions exchangerates.These changescould sabotage in macroeconomic The consequences agreements. in national interests particularinternational tradepacts,for underexisting involvean unacceptablesurgein imports might nationsmight affairs, example,or the collapse of producercartels.In security or progress the potentialfornew about the rate of technological be uncertain armstreatiesmay existing these innovations, By weapons systems. restricting can Such developments produce costsforone side.73 future createunexpected and terms, change and losers,in eitherabsoluteor relative winners unexpected the value of existingcontractualrelations. Put another way, institutional or (includingagreements)can magnify diminishthe distribuarrangements changes. tionalimpactofexogenousshocksor unexpected inflexible bargainsbehind reluctant make long-term, to States are naturally this veil of ignorance. Even if one state is committedto upholding an gainsor losses,thereis no guaranteethat despitepossiblewindfall agreement not be might otherswill do the same. The crucialpointis thatan agreement in Such uncertainif asymmetry benefits. self-sustainingthereis an unexpected of withthe difficulties self-enforcement, together ties about future benefits, of underconditions rapidtechnological to reliability pose seriousthreats treaty The vulnerabilities. presenceof or strategic volatility, changing change,market the dangerstheypose forbreach of treaty obligations and such uncertainties withgreater flexibility. of foster pursuit substitute the arrangements States use several basic techniques to capture the potential gains from (formalor First,theycraftagreements cooperationdespitethe uncertainties. can durationso thatall participants calculate theirrisks of informal) limited and benefitsunder the agreementwith some confidence.Strategicarms treatiesof severalyears' durationare a good example. Second, theyinclude under specifromcommitments withdrawal thatpermitlegitimate provisions In fied terms and conditions.74 practice, states can always abandon their
could complicate treatymaintenance,see 73. For one model of how technical innovations chap. 5. ArmsRaces, andArmsControl, Downs and Rocke, TacitBargaining, Termination. of 74. David, TheStrategy Treaty

agreements 519 Informal is since enforcement so costlyand problematic. commitments, international then,is to lowerthe generalreputational terms, The real pointof such treaty despite encouragestatesto cooperateinitially and costsofwithdrawal thereby Third, theyincorporateprovisionsthat permit the risks and uncertainties. period or a limitedset of coveringeither a temporary partial withdrawal, obligations. GATT escape clauses, which permit post hoc protectionof example.75 Finally,statessometimes are endangeredindustries, a well-known frametheir agreementsin purelyinformaltermsto permittheir frequent Exporting of of The adjustment. quota agreements theOrganization Petroleum are that.While the OPEC agreements critically Countries(OPEC) do exactly and are centralto theireconomicperformance, to important the participants to they are framedinformally permitrapid shiftsin response to changing is of Once again,theform agreements notdictatedbytheir market conditions. substantive significance. the by goal is to enhancenationalrevenues managing world OPEC's primary is It oil market. is a producercartel,or at least it hopes to be. Its basic strategy quotas forindividualmembers.That entails to achieve price targetsthrough schedule,at least twicea yearand sometimes on meetings an irregular frequent and demand is hard to forecast, Afterall, energy warrant. more ifconditions because controlthe supply.Its controlis incomplete OPEC does not entirely to because thereare alternatives non-OPEC producers, thereare important is cheaton their quotas.This cheating and petroleum, because OPEC members to theyprovidethe opportunity OPEC meetings: anotherreason forfrequent at threats cheaters. direct collective pressureand individual To facilitatethese negotiations,there is a small formal organization, headquartered in Vienna. But OPEC's reasons for existence-its price and productionquotas-are set out in informalagreementsand targeting oil conferencecommuniques,approved by participating ministers."These The at are agreements designedto lastforonlya fewmonths, most.77 oil output quotas reached in June1989,forexample,coveredonlythe second halfof the agreed to meet again in year.As soon as the bargainwas sealed, theministers three months to review market conditions and quotas.78OPEC's formal, or but negotiations, it does nottranscend framework facilitate can institutional
Parties to offer 75. ArticleXIX of the GATT covers safeguards.It permitsthe Contracting Safeguard Selective See by disrupted imports. Marco Bronckers, to emergency protection industries and in IssuesofProtectionism GATT,EuropeanCommunity, TradeRelations: in Measures Multilateral Kluwer,1985); and PeterKleen, "The SafeguardIssue Law (Deventer,Netherlands: United States Approach,"Joumalof WorldTrade25 (October 1989), in the UruguayRound: A Comprehensive pp. 73-92. 76. Typicalwas the communiqu6issued in late 1983 at the conclusionof OPEC's sixty-ninth ceilingof 17.5 millionbarrelsper day and its marker conference. restatedOPEC's production It (Cambridge:Cambridge Years priceof $29. See Ian Skeet,OPEC: Twenty-Five ofPricesand Politics Press,1988),p. 196. University and 77. Ibid.,introduction chap. 1. as 78. See JamesTanner and Allanna Sullivan,"OPEC Peace May Be Short-Lived Debate European edition,12 June1989,pp. 1 and 10; and "A Joumal, Looms on New Quotas," WallStreet 10 of Confederacy Cheats,"Economist, June1989,p. 88.

Organization 520 International Whatreally matters states.79 purposesofthemember transform immediate the on agreements crude but organization the nexusof informal is not the formal and oil production themembers'(uneven) compliance. in lie At the other end of the spectrum, termsof formality, arms control on for long withdetailedlimitations specific weaponssystems relatively treaties They do so uncertainties. some important periods. They,too, mustconfront termsand a timeframe to the principally restricting agreement verifiable by The institutional arrangements excludesnewweapons systems. thatessentially they are thustailoredto theenvironment regulate. requirelong lead timesto build and deploy.As a Modernweapons systems result, militarycapacity and technologicaladvantages shiftslowly within these new techniques, specific weapons categories.Withmodernsurveillance technologicalcapacities are not opaque to weapons programsand shifting to stable,then, is The military environment be regulated relatively adversaries. can be projected with some so the costs and benefitsof treatyrestraints confidence overthemediumterm. some clear advantagesin armscontrol. treaties offer Giventheseconditions, duly by detailedpubliccommitments, ratified nationalpolitical Theyrepresent and an wouldstillneed to identify punish authorities. party Although aggrieved or any alleged breach,the use of treatiesraises the politicalcosts of flagrant It punishment). does so deliberateviolations(or, forthatmatter, unprovoked the bymaking disputesmoresalientand accessibleand byunderscoring gravity both sides feel thatthey of promises.Moreover,at least in nuclearweaponry, if the from by could cope withmajortreaty violations, necessary, withdrawing treatyand pursuingtheir own weapons programsat an accelerated pace. in Strongtreatycommitments, otherwords,would not expose them to the Both sides are confident that of surprisedefection.80 possibility a devastating can detectmajorviolationsin timeto theirsatellitesand human intelligence weapons.81 produceand deploycountervailing Followingthis logic, most arms controlagreementshave been set out in testbans or the form. Whether subjectis nuclearor conventional forces, treaty weapons ceilings,American and Soviet negotiatorshave always aimed at Discussionsduringa summit withfullratification. meeting formaldocuments
a institution, merely not had hoped to create an operatinginternational 79. OPEC's founders section. The there was even an enforcement negotiating forum.In the originalorganization, in dropped by 1964 and disappeared formally 1966. This transformation sectionwas effectively Generalwouldnotact,as had admission... thatOPEC and itsSecretary amountedto an "implicit armofitsmembers." See Skeet,OPEC: Twenty-Five as been visualizedat itscreation, an operating p. YearsofPricesand Politics, 237. see Charles Lipson, affairs, 80. On the importanceof surprisefor cooperation in security World Politics37 (October 1984), Affairs," "International Cooperationin Economic and Security pp. 1-23. covering chemicaland 81. Following same logic,bothsideshavebeen cautiousabouttreaties the to have been muchmore difficult detect. and deployment biologicalweapons,whose production difficult, especiallysince otherkindsof production Monitoring partialban would be extremely a uses. could be converted military to facilities

Informal agreements 521 for an arms or a walk in the woods may lay the essential groundwork in agreement, theyare notagreements themselves.82 but of Over the history superpowerarms control,onlythe tacitobservanceof agreement.Of course, the SALT II could be classifiedas a major informal SALT negotiatorshad actually produced a formal agreement,filled with It contractual details and the languageof bindingcommitments. had majority in votewas neverheld because itlackedthe support theU.S. Senate,buta final majority. necessary two-thirds existence. Membersof After ratification foundered, treaty the liveda twilight debated the matter withno guidancefrom the Reagan administration publicly of above. The hawkish secretary the navy, JohnLehman, announcedthatthe United States should not complywitheitherSALT I or SALT II. The State Department, theotherhand,announcedthattheUnitedStateswould"take on so no actionthatwouldundercut existing agreements longas the SovietUnion a code: itis the This exercises same restraint."83 languageis actually diplomatic while a treaty pending is the standardway to acknowledgelegal obligations refusedto ratification. well over a year,however,the Presidenthimself For did but make a similaracknowledgment. finally so in May 1982,84 at the He same timehe continuedto criticize SALT and actuallystatedthatthe United States would observeonlythose portionsof the agreement dealing "withthe In the monitoring each other'sweaponry."85 practice, United States did not of limitations specific on exceed the treaty's weapons forsome years. Still,the and ambiguous.86 commitments alwaysinformal was Perhaps scope of official and encoded signalswere the most that could be these tacit arrangements the salvagedfrom failedtreaty.

interpret bargains, courtmight a to pertained domestic thatifthediscussions 82. Note,however, binding, dependingon the levelof detail and the in these"agreements principle"as contractually courtsmatters. international promissory language.Once again,the absence of effective of issuedbyU.S. Department Stateon 4 March1981and citedbyTalbottin 83. Publicstatement p. Deadly Gambits, 225. p. National Cemetery," 709, 84. In his "Remarks at Memorial Day Ceremoniesat Arlington we strategic arms agreements, "As forexisting statement: PresidentReagan made the following themso longas the SovietUnion showsequal restraint." willrefrain from actionswhichundercut Compilation of 85. Presidentialresponse to a question on 13 May 1982, quoted in Weekly Documents, 18,no. 19, 17 May 1982,p. 635. vol. Presidential of CarterdeclaredthattheUnitedStateswouldcontinueto observetheterms the 86. President criticized exceedinghis legal for and was roundly interim afterits expiration SALT II agreement powers. His successor,who had campaignedagainst SALT II, declined to make any "parallel unilateral policy declarations." The Congress was not so inhibited. In the 1984 Defense international existing Authorization Act,it declaredthatthe United States shouldnot undermine expiredin December arms,at least untilthe SALT II agreement on strategic agreements offensive but 1985, providedthe Soviet Union did the same. PresidentReagan made a similarstatement on arms(the START talks).In added thatthe Sovietsmustalso pursuea new agreement strategic weaponswhen on SALT limits strategic December 1986,theUnitedStatesexceeded theaggregate the intoservice.Even then,one yearafter original itput a newB-52,equipped withcruisemissiles, the date of the SALT II agreement, United Statesdefendeditsactionsas a sanctionfor expiration p. Sovietviolations. See Calvo-Gollerand Calvo, TheSALTAgreements, 330.

522 International Organization SALT II, in itsinformal guise,actually survived beyondtheexpiration date of the proposed treaty. Like mostarmscontrolagreements, had been written it with a limitedlife span so that it applied in predictableways to existing weaponry, to new and unforeseen not Time limits liketheseare developments. used to manage risksin a wide rangeof international agreements.87 They are especially importantin cases of superpower arms control, in which the desirability specific of agreements relatedbothto particular is weaponry and to the overallstrategic balance. As the military setting changes,existing commitments become moreor less desirable.Armscontrol agreements mustcope with thesefluctuating benefits overthelifeoftheagreement. The idea is to forgeagreements thatprovidesufficient benefits each side, to whenevaluatedat each pointduring lifeof theagreement, thateach will the so in choose to complyout of self-interest orderto perpetuatethe treaty.88 This self-generated complianceis crucial in superpowerarms control.Given the relativeequalityof power,U.S.-Soviet military are not so much agreements What sustainsthem is each participant's enforcedas observedvoluntarily. would provetoo costly it if perception thattheyare valuable and thatcheating were matchedby the other side or if it caused the agreementto collapse To altogether. ensurethattreatiesremainvaluable overtheirentirelifespan, them to knownweaponryand stockpiles. negotiators typically to restrict try That translates intofixed dates.89 expiration When agreementsstretchbeyond this finitehorizon,signatoriesmay be temptedto defectas theydevelop new and unforeseen advantagesor become more vulnerableto surprisedefection, issues thatwere not fully anticipated whenthe agreement made. The preference was thatonce supported orderings cooperation may no longer hold. That has been one of the dilemmas in the missile(ABM) treaty recent surrounding antiballistic years. The ABM treatyestablishedstrict, permanentlimitson U.S. and Soviet in missiledefenses.90 Since its ratification 1972, however,the possibilities of missiledefensehave advanced considerably. The United States,withits more advanced economy, has widened its lead in the relevantnew technologies of
87. Bilder,Managing RisksofInternationalAgreement,49-51. the pp. 88. RaymondVernon,writing foreign on investments, shownthe dangersof violating has this to benefits both sides, it mayprovidethose approach. Even if an agreement providessignificant to benefits one side immediately to the othermuchlater.Such agreements vulnerableto and are This is one elementof noncompliance midstream, in after one side has alreadyreceiveditsbenefits. of Vernon's"obsolescingbargain."It is a variant Hobbes's critique covenants, whichone side of in performs side of the bargainfirst. RaymondVernon,Sovereignty Bay: TheMultinational its See at Spreadof U.S. Enterprises (New York: Basic Books, 1971). On the generallogic of self-sustaining see agreements, Telser,"A Theoryof Self-Enforcing Agreements," 27-44. pp. 89. This allows negotiators make reasonable calculationsabout the variousparties'expost to incentives defectduring lifeof theagreement. to the 90. See "Limitationof Anti-Ballistic Missile Systems,Signed May 26, 1972, with Agreed Interpretations, Common Understandings, UnilateralStatements," United and in StatesTreaties and Other vol. D.C.: Government InternationalAgreements, 23,part4 (Washington, Printing Office, 1973),pp. 3435-61.

Informal agreements 523 relied on microelectronics, software, and lasers. The Reagan administration thissuperiority develop the strategic to defenseinitiative (SDI) and urged a The reinterpretation the ABM treaty orderto testsome of itsweaponry. of in dispute over how to interpretthe ABM treatyis thus grounded in the in shift consequences of these new technologies and in the slow, cumulative once again, nationaladvantagestheyhave produced.91 The debate illustrates, the difficulties usingrigid, of whichlack external enforceformal instruments, and international to environment. ment, regulatea shifting unpredictable of All of these issuesrefer the detailedregulation slow-changing to strategic environments. the Although issuesare crucialto nationaldefense,theyare not itself mustbe hiddenfrom that view. so sensitive diplomatically the agreement in preCooperative arrangements such issues, accordingto the arguments to form. sentedhere,are likely be in treaty

Hidden agreements
When securityissues must be resolved quicklyor quietlyto avoid serious will are conflict, thenless formal instruments be chosen.If theterms especially would humiliate one party convey or unacceptsensitive, perhapsbecause they able precedents,then the agreementitselfmay be hidden fromview.92 The was by mostdangerous crisisofthenuclearera,theCuban missilecrisis, settled the most informaland secret exchanges between the superpowers.The overridingaim was to defuse the immediate threat. That meant rapid to agreementon a few crucial issues, with implementation followquickly. as These informal exchangeswere not the prelude to agreement, in SALT or ABM negotiations; the were agreement. they an The deal to removemissilesfrom Cuba was crafted through exchangeof the letters, supplemented secretoral promises. by Duringthecrisis, Sovietshad President put forwarda number of inconsistent proposals for settlement. of Premier Khrushchev's letter 26 Kennedyrespondedto themostconciliatory: and set a quick October 1962. The nextday,Kennedyaccepted itsbasic terms The deadlineforSovietcounteracceptance. essence ofthebargainwas thatthe Cuba in return America'spledgenot for Sovietswouldremoveall missiles from to invade the island. The termswere a clear U.S. victory. They completely overturnedthe Soviet policy of puttingnuclear missiles in the Western Hemisphere.The Sovietsgotnothing publicly. Theywerehumiliated. U.S. acceptance of the bargain was set out in diplomaticmessages sent PresidentKennedy also sent his brotherRobert to to directly Khrushchev.
literature. See, forexample,StephenJ.Cimbala, 91. These issuesare thesubjectofan extensive Press,1987). ed., The Technology, Strategy Politics SDI (Boulder,Colo.: Westview and of are because ratification 92. In moderninternational politics, thesehiddenagreements informal systems, is public and the treatiesare registered withthe United Nations.In earlierinternational werepossible. however, neither condition applied and secrettreaties

524 International Organization speak withSoviet AmbassadorAnatolyDobrynin, conveyU.S. acceptance to and to add severalpointsthatwere too sensitive includein anydocumentato tion, however informal.93 Years later, the substance of their conversation became public.Dobrynin had asked iftheUnited Stateswould also removeits from older missiles Turkey(and perhapsItaly)as partof the deal. The Soviets had pressedthispointbefore.Their aim was to salvagesome threadofvictory from the diplomatic confrontation. The Turkish missiles were no longer strategically important,and for some time the United States had been themunilaterally. now anyagreement remove considering But withdrawing to themwould acquire a markedly different meaning.That is exactly what the Sovietswanted: a visible quid pro quo. The Soviets could then claim some in symmetry the outcome of the Cuban missilecrisis.Each side would have missiles based near its gotten its adversaryto remove some threatening The United States, bargainingfroma position of overwhelming territory. nuclear superiority, refused this direct, visible linkage. Robert Kennedy informed Dobryninthat the United States would not unilaterally withdraw missiles thathad been stationedtherebyan allied decisionmade bytheNorth AtlanticTreatyOrganization(NATO). A concessionon the Turkishmissiles could notbe partof the Cuban missileagreement. simply Havingsaid this,the President's brother thenstatedthatthe United States "expected" the Turkish missiles "be gone" soon after crisis.94 to the thisas a firm Bothsidesunderstood lest it signal any U.S. weakness. pledge, but one that mustremaininvisible, as Whileframed a unilateral and itsimmediate disclosureto choice,itstiming theSovietswereclearly designedto help settletheCuban missilecrisis. The Sovietscontinued pressforsomewritten to assurances, because they not doubted that the missileswould be removedbut because theywanted some creditfortheirremoval. tookan unsigned letter Dobrynin from Khrushchev to Robert Kennedy on 29 October 1962, again seeking some direct,written commitment the Turkishand Italian missiles. "Robert Kennedy called on back the nextday," accordingto RaymondGarthoff, Dobrynin "returnedthe draft Khrushchev and categorically letter, rejectedanysuchwritten exchange. He informed Dobryninthatif the Soviet Union publishedanything claiming that there was such a deal, the U.S. intentions with respect to the Jupiter missileswould change, and it would negatively reflecton the U.S.-Soviet relations.The Sovietsdropped the matter."95 This part of the deal remained secret and deniable. The Soviets said nothingpublicly,and NATO quietly removed agingmissiles its from and Italywithin months.96 six Turkey

93. RaymondL. Garthoff, Reflections theCubanMissileCrisis, on reviseded. (Washington, D.C.: Brookings Institution, 1989),pp. 86-87. 94. RobertF. Kennedy, Thirteen Days:A Memoir theCubanMissileCrisis(New York: Norton, of 1971),pp. 108-9. 95. Garthoff, on Reflections theCubanMissileCrisis, 95 n. p. 96. Ibid.

Informal agreements 525 The bargainsthatended the Cuban missilecrisis were all informal, their but motivesand theirdegree of informality differed. The keydecisionsto remove missilesfromCuba in exchangefor a pledge of noninvasion were informal because of timepressure.They were embodied in an exchangeof messages, ratherthan in a singlesigned document,but at least the keypointswere in writing. The removalof outdatedTurkishand Italian missiles was also partof the overallbargain-an essentialpart,accordingto some participants-butit was couched in even moreinformal terms because ofpoliticalsensitivity.97 The in sensitivity thiscase was America'sconcernwithits image as a greatpower and, to a lesser extent,with its role in NATO. This kind of concernwith external imagesis one reasonwhyinformal are agreements used forpolitically sensitive bargains:they be hidden. can Once again, there are costs to be considered. If a hidden agreementis exposed,itspresencecouldwell suggest deception-to thepublic,to allies,and to other government agencies. Even if the agreementdoes stay hidden, its secrecy imperilsits reliability. Hidden agreementscarrylittle information about the depth of the signatories'commitments, poorly bind successor and governments, fail to signal intentions thirdparties. These costs are to in clearlyexemplified the secrettreatiesbetween Britainand France before World War I. They could do nothing deter Germany, to whichdid not know about them.Moreover,theypermitted the signatories develop markedly to different conceptions about theirimpliedcommitments allies.98 as Hidden agreementscarryanother potential cost. They may not be well understoodinside a signatory's own government. the one hand, thislow On profile maybe a valuable tool of bureaucratic executivecontrol, or excluding
97. It is sometimes arguedthattheTurkish and Italian missiles were notpartof anydeal, since theUnited Stateswouldsoon have removed themeven ifthe Sovietshad notraisedthe issue. The counterargument, whichI find moreconvincing, thatthe Sovietssoughttheirremovalas partof is the bargaining Cuba and the United States did, in effect, on agree thatit "expected" to remove them.The Americandecisionwas timedand disclosedspecifically encourageSovietacceptance to of the largerdeal. Garthoff calls thisdecision"an additionalsweetener"that"certainly made it easier forKhrushchev accept the basic over-the-table to settlement." Garthoff, See Reflections on theCuban MissileCrisis, 87; see also pp. 88 and 94-95. Given the highstakes in Cuba, Soviet p. behaviorwas probablylittlechanged by the Turkishside-payment. We will never know with certainty. From the U.S. viewpoint, however,it was wise to make the concessionspart of the bargaining:they were minor, secret, and potentiallyquite rewarding.When information is imperfect, itwas in thiscase, clevernegotiators "bargainaway"concessionsthatwouldhave as can been undertaken The tacticis to makethemappear contingent, thegoal ofextracting anyway. with additionalconcessionsand sealingthefinal bargain.That is exactly whattheUnited Statesdidwith the agingTurkishand Italian missiles,while minimizing reputational the costs of any apparent concessions. 98. In 1906,the BritishForeignMinister, Edward Grey,discussedthe dilemmasposed by Sir theseexpectations. The ententeagreements, signedbya previousBritish government, "created in France a beliefthatwe shallsupport is the [theFrench]inwar.... If thisexpectation disappointed, Frenchwill neverforgive There would also I think a generalfeelingthatwe had behaved us. be badlyand left Francein thelurch.... On theotherhandtheprospect a European warand ofour of beinginvolved itis horrible." document 299,in G. P. Gooch and Harold Temperley, in See no. eds., British Documentson theOrigin the War,1898-1914,vol. 3 (London: His Majesty'sStationery of Office, 1928),p. 266.

Organization 526 International in internaotheragencies fromdirectparticipation makingor implementing otherhand, the ignoranceof the excluded actors On tional agreements. the maywell provecostlyiftheiractionsmustlaterbe coordinatedas partof the can When thathappens,hiddenagreements become a comedyof agreement. errors. to to exports the Soviet Americaneffort restrict One exampleis thepostwar bloc. To succeed, the embargoneeded European support.Withconsiderable finallyagreed to help, but they reluctance,West European governments was so unpopularat home.As a result, because theembargo demandedsecrecy the U.S. Congressneverknewthatthe Europeans were actuallycooperating In with the American effort.99 confusedbelligerence,the Congress actually aid passed a law to cut offforeign to Europe if the allies did not aid in the embargo."' it the function anothersignificant has implication: limits Thisweak signaling even ifthe agreements as precedents, agreements diplomatic value of informal agreehas are themselves public. This limitation two sources.First,informal and so theyare less readily less visible and prominent, mentsare generally available as models. Second, treaties are considered better evidence of and to convention international according diplomatic deliberatestatepractice, understoodas contributing are agreements conventionally law. Public,formal are agreements less for Precisely thatreasoninformal precedent. to diplomatic usefulas precedentsand more usefulwhen stateswant to limitany broader, of bargains.They framean agreementin more adverse implications specific adversaries, Discussionsbetweenlong-time circumscribed waysthan a treaty. low-level basis to avoid anyimplicit forinstance, usuallybeginon an informal, mayalso be conductedindirectly, of recognition widerclaims.Trade relations between relationships to contract entrepots, avoid anyformal usingthird-party estranged governments. Relations betweenthe People's Republic of China and Taiwan have been for conductedinformally theseveryreasons.The pointis not so muchto keep linkage announced)butto limit sometimes thedealingssecret(theyare,in fact, to any larger issues. Both sides, for example, can profitfromcommercial exchange,but neitherwants to prejudice its claim to be the sole legitimate of contactsand of government China. The resultis a proliferation informal often using overseas Chinese as middlemen.Hong Kong and agreements,
99. Althoughthe State Departmentdid tryto persuade Congressthat WesternEurope was were the were in vain. Quiet reassurancesfrom State Department aidingthe embargo,its efforts to maneuvers Congress,whichsaw themas self-serving anticommunist by distrusted a hard-line, Weapon: Americanand ties. See Michael Mastanduno,"Trade as a Strategic diplomatic preserve David A. Lake, Alliance ExportControlPolicyin theEarlyPostwarPeriod,"in G. JohnIkenberry, Economic Policy(Ithaca, N.Y.: and Michael Mastanduno,eds., The Stateand AmericanForeign Press,1988),p. 136. CornellUniversity 1st Act of 1951 ("Battle Act"), 82d Congress, sess., 100. See MutualDefense AssistanceControl 65 Stat.644.

Informal agreements 527 Singapore,with their large populations of ethnic Chinese, have frequently servedas intermediaries.101 Hong Kong is particularly well located to facilitateindirecttrade and investment betweenTaiwan and themainland.In 1989,thiscommerce reached $3.5 billion, up from$1 billion in the mid-1980s.102 Singapore,which has cultivated politicalties to both countries, now occupies "a unique positionof advantagein the conductof informal relations"betweenthem,accordingto Michael Leiferand Michael Yahuda.l03 April 1989,Singaporeservedas the In conduit for the first known criminalextradition fromthe mainland to the island. Three mainland police flew to Singapore with their prisonerand transferred to Taiwanese officers return theisland.104 moreformal, him for to A regularizedprocedure,like the extradition treaty betweenthe United States and Turkey,would present insurmountableproblems. It would require documentation namedthetwosignatories was ratified them.Would that and by the documentreferto the Republic of China or to the provinceof Taiwan? Eitherreference would concede a much largerissue: diplomaticrecognition. In this case and in many others,informalagreementsare useful because they facilitatecooperation on specificissues while constraining any wider implications regardingother issues or thirdparties. They permitbounded
cooperation. ?5

The statusoftacitagreements
We have concentrated,until now, on informalbargains that are openly at The expressed, least amongtheparticipants themselves. form maybe written or oral,detailedor general,butthereis some kindof explicit bargain.

101. Note thatSingaporeand Hong Kong do not have formal diplomatic relations witheither the People's Republic of China or Taiwan. Far from beingan impediment, absence of formal this tiescontributes their to roleas intermediaries. Giventhelong-standing over controversy diplomatic recognition, best way to maintainlinksto both the mainlandand the island is through the these informal, back channels. The same channels have been used extensively overseas Chinese by communities arrangeforburialsor to visitthegravesof ancestors to on interred themainland. 102. These figures, whichwere reported TheNew YorkTimes,14 April1990,p. 17,are based in on data from Ministry EconomicAffairs Taiwan and the government Hong Kong and of the in in include trade and investment routed throughHong Kong companies to avoid Taiwanese restrictions. 103. Michael Leiferand Michael Yahuda, "ThirdParty China?" working paper,London School ofEconomics,1989,p. 1. 104. Ibid.,p. 2. 105. Because informal extradition arrangements ad hoc, theyare easilysevered.That is a are mixed blessing.It means that extradition issues are directly implicatedin the largerissues of bilateraldiplomacy. Theycannotbe treatedas distinct, owntreaty technical issuescoveredbytheir rules.For example,thebloodysuppression popularuprisings 1989in thePeople's Republicof of in China blockedprisoner exchanges and made tradeand investment politically ties riskier.

528 International Organization Tacit agreements, the other hand, are not explicit.They are implied, on Such implicit or ratherthan directly stated.106 arrangeunderstood, inferred of Theygo beyondthesecrecy cooperation. mentsextendthescope ofinformal on oral agreements maybe the onlywayto avoid seriousconflict and, at times, are issues.Such bargains, carrying the however, all too oftenmirages, sensitive but superficial appearanceof agreement notitssubstance. The unspoken "rules" of the Cold War are sometimesconsidered tacit spheresof influstaked out theirrespective agreements.107 superpowers The Yet they made no explicit engageeach other'sforces. ence and did notdirectly on agreements eitherpoint. In the earlyyears of the Cold War, the United States quietlyconceded de factocontrolover Eastern Europe to the Soviets. The policiesthatlaid thebasis forNATO were designedto containthe Soviet and militarily, nothing but more. They made no Union, both diplomatically wartime to gains,whichhad been converted effort rollback the Sovietarmy's in amounted to intoharshpoliticaldominion thelate 1940s.America'srestraint Moscow's rea spheres-of-influence policy withoutactuallyacknowledging the This silence onlyconfirmed Soviets'worstfears gional security interests. and contributed bipolarhostilities. to no In the bitter climateof the earlyCold War period,however, U.S. official was prepared to concede the Soviets' dominancein Eastern Europe. Earlier conferencesat Yalta and Potsdam had seemed to do so, but now these While Democrats concessions were pushed aside, at least rhetorically.108 because of reinterpreted these agreementsor considered them irrelevant Sovietviolations, Republicans denounced themas immoralor even treasonous.109 Backed bythesedomestic U.S. policy was couchedin sentiments, foreign the language of universalfreedoms,conceding nothingto the Soviets in

English Dictionary, 106. This definition based on the second meaningof "tacit" in The Oxford is 2d ed., vol. 17 (Oxford:ClarendonPress,1989),p. 527. Rules, 107. See Keal, Unspoken Rules and Superpower Dominance; and FriedrichKratochwil, Norms and Decisions(Cambridge:Cambridge University Press,1989),chap. 3. were binding 108. A fewinternational lawyers arguedthatthe Yalta and Potsdamagreements in treaty commitments. U.S. StateDepartment publishtheYalta Agreement theExecutive The did in Agreements Series(no. 498) and in U.S. Treaties Force (1963). In 1948, Sir Hersch Lauterpacht on binding said thatthey"incorporated definite rulesof conductwhichmaybe regardedas legally explicitly rejectedthatview. In the States in question." The Britishand Americangovernments to 1956,in an aide-memoire the Japanese government, State Departmentdeclared that"the the as a of purposesby UnitedStatesregards so-calledYalta Agreement simply statement common the in the heads of the participating and . . . not as of any legal effect transferring governments vol. 35, 1956, p. 484, cited by Schachterin "The territories." Department StateBulletin, See of TwilightExistence of NonbindingInternationalAgreements,"p. 298 n. See also L. P. L. 7th Law: A Treatise, ed. (London: Oppenheim, Peace, vol. 1 of H. Lauterpacht, ed., Intemational Longmans, Green, 1948),p. 788,section487. vice was former president HenryWallace, 109. The one majorexception amongU.S. politicians the representing leftwingof the Democraticparty.Wallace openlystated that the Soviets had in there.His legitimate security interests Eastern Europe and should not be challengeddirectly viewswerewidely denouncedin bothpartiesand won fewvotes.

Informal agreements 529 accepted In Eastern Europe.1"0 practice,however,the United States tacitly up Sovietcontrol to thebordersofWest Germany. but How does tacit acceptance of this kind compare with the informal in explicitbargains we have been considering?They are quite different so-calledtacit problemin analyzing I The mostfundamental principle, think. exists.More broadly, whether real agreement any bargainslies in determining on contingent that is theresomekindofmutualpolicyadjustment is (implicitly) as If reciprocity? so, what are the parties' commitments, theyunderstand them?Often,whatpass fortacitbargainsare actuallypolicies thathave been in chosen unilaterally and independently, lightof the unilateralpolicies of of others.There may be an "understanding" other parties' policies but no basis. to implicit agreements adjust these policies on a mutualor contingent its Each partyis simplymaximizing own values, subject to the independent bargain Whatlookslikea silent choicesmade or expectedto be made byothers. be maysimply a Nash equilibrium. This is not to say thattacitbargainsare alwaysa chimera.Each partycan some conforming adjustment basis,awaiting adjustitspolicieson a provisional argued that this is the most by others. Thomas Schellinghas consistently Robert Axelrod has used fruitful approach to superpowerarms control."1' of and robustness such tacit games to analyze the possibilities experimental bargains. In Axelrod's games, there can be no explicitbargains,however is Afterall, theprisoners' because directcommunication prohibited. informal, dilemmais no dilemmaat all if playerscan openlycontractaround it. Still, offertacit agreements.They confrontnew some players may effectively That moveis sensibleonlyif an partners making initial"generous"move.112 by ratherthan aggressively playing some respond with generosity themselves, is strategy to communicate themfora sucker.The whole pointof a tit-for-tat to of if, thepossibility a tacitbargain:a willingness playcooperatively and only as if,the otherside willdo so as well. The problem, George Downs and David Rocke have shown, is that states may not always know when others are One are.113 or and maynot knowwhat theirintentions cooperating defecting thatare more or state maythenpunishothersfornoncompliance defections apparent than real and thus begin a downwardspiral of retaliation.Such knowledgedoes not preventtacit cooperation,but it does suggest imperfect
Affairs (Autumn1967), 46 Jr., 110. Arthur Schlesinger, "Originsof the Cold War," Foreign M. pp. 22-52. Daedalus 89 (Fall 111. See Thomas C. Schelling, "Reciprocal Measures forArmsStabilization," Affairs "What WentWrongwithArmsControl?"Foreign 1960),pp. 892-914: Thomas C. Schelling, and 64 (Winter1985-86), pp. 219-33; and Thomas C. Schellingand MortonH. Halperin,Strategy pointis 1985), pp. 77-90. Schelling's D.C.: Pergamon-Brassey, ArmsControl, ed. (Washington, 2d Agreements." endorsedbyAdelmanin "ArmsControlWithand Without strongly of (New York: Basic Books, 1984). 112. RobertAxelrod,TheEvolution Cooperation and ArmsControl";and worksbyDowns and Rocke: "Tacit Bargaining 113. See the following TacitBargaining, Arms Races, andArmsControl.

Organization 530 International and risksto tacit bargaining, need formore "fault the serious impediments and moreexplicit communication gainsfrom tolerant" strategies, thepotential and greater transparency. in respondsto In ongoing interactions whicheach side continually diplomatic to between it theother'spoliciesand initiatives, mayalso be difficult distinguish part tacitbargainsand unilateralacts. One side mayconsideritsown restraint whilethe otherconsidersit nothing more thanprudent of an implicit bargain, In self-interest. the earlyCold War, forinstance,the United States could do in war.There waging to Sovietcontrol EasternEurope without nothing reverse was little to be gained by providingsubstantial aid to local resistance Theirchancesforsuccesswereslim,and thedangersofescalation movements. to were significant. Any U.S. efforts destabilize Soviet controlin Eastern tensionsand raised the increasedinternational Europe would have markedly in of U.S.-Soviet conflict centralEurope. Under the circumstances, dangers More aggressive actionin EasternEurope was Americanpolicy was restrained. of and poor chancesofsuccess,notbytheimpliedpromise deterred therisks by the Soviets.There was a learningprocessbut no some reciprocalrestraint by tacitbargain. with By In anycase, mosttacitbargainsare hardto identify confidence. their whatmayappear leave littletrace.Moreover, agreements very nature, implicit are to be implicit agreements oftenexplicableas outcomesof more narrowly one self-interested unilateralpolicies. Given these difficulties, valuable aptacitbargainsis to examinethe reactionsand discourse proach to uncovering surrounding possible "violations." Tacit bargains,like their more explicit Breakingthe are counterparts, based on the reciprocalexchangeof benefits. of to terms thatexchangeis likely be givenvoice. There willbe talkofbetrayal but and recriminations, wordsofregret having at extended generous uncompensated concessions. There ought to be some distinctiverecognitionthat built up duringthe course of joint reasonable expectationsand inferences, have been breached. Thus, there is regret and not merely interactions, surprise."' in Considerthedifferences America'sreactionto expandedSovietinfluence in in two cases: Cuba in 1959-60 and Afghanistan 1979-80. Afterthe Cuban the Soviets managed to develop a de facto ally in the Western revolution, Hemisphere.The UnitedStateswas shockedbya challengeso close to itsown It territory. was shocked because the Soviet-Cuban alliance challenged new America'sunique powerin theWestern Hemisphereand posed significant withthe strategic problems,not because it broke some silentunderstanding Soviets over respectivespheres of influence.What had been violated was America's unchallenged position as the great power in its own region.
Elster makes this distinction betweenregretand surpriseand 114. In The Cementof Society, relates it to two formsof order. Departures fromregularized, predictablebehaviorgive rise to cooperation producesregret. surprise. Unreciprocated

Informal agreements 531 of of America'sassertion thatunique positionhad been thebeginning itsriseto Since then,it had taken all century.1"5 global power in the late nineteenth seriously indeed. There was no claim, very challengesto itsregionalhegemony withthe however, that the Sovietshad violated some general understanding United States or had somehow failed to reciprocateAmerica's restrained and policiesnear theSovietborder.On thebasis ofAmerica'spronouncements no reactivepolicies,therewas simply evidence thata tacitbargainhad been broken. of ComparethatwithAmerica'sreactionto the Sovietinvasion Afghanistan. a of The Carteradministration, whichhad been pursuing policy increasedtrade and normalizedrelationswiththe Soviets,clearlyconsideredthe invasiona For detente.116 the directattackon the broad, implicit underlying agreement purposesoutsideEastern first time,Soviettroopshad been used foraggressive Europe. PresidentCarter's own sense of shock,outrage,and betrayalwere It allies.117 sharedinAmericaand,to a lesserextent, amongtheWestern widely to threat the was thisdeep sense ofviolation, and notjust thepotential military PersianGulf,thatended a decade of closertiesbetweenthesuperpowers."18 The Soviets, course,saw matters differently. vieweddetentein more They of to restrictive terms, relatedprincipally the nuclearbalance, European diplodetached from the invasionof Afghanistan support or macy,and trade flows, in forguerrilla factions the Horn of Africa,Angola, Mozambique, or Central America. are These different whichhave been so well documented,119 understandings,
of 115. Walter LaFeber, The New Empire:An Interpretation AmericanExpansion,1860-1898 Press,1963). (Ithaca, N.Y.: CornellUniversity invasion,there chap. 27. Until the Afghanistan 116. See Garthoff, Detenteand Confrontation, of the over had been a sharpdebate within Carteradministration the impliedterms detente.The problem with implied terms,after all, is that they may well be ambiguous and differently was National them.The eventualwinner understood different by actors,across statesand within SecurityAdviser Zbigniew Brzezinski,who clearly stated his position early in the Carter while discussing Horn of Africa.In March 1978,he wroteto PresidentCarter the administration that "the Soviets must be made to realize that detente, to be enduring,has to be both forcein If and comprehensive reciprocal. the Sovietsare allowed to feelthattheycan use military cooperativerelationsin otherareas-then theyhave no one partof the world-and yetmaintain Powerand Principle: Memoirs the of See incentive exerciseanyrestraint." ZbigniewBrzezinski, to 1977-1981(New York: Farrar,Straus,Giroux,1983),p. 186. NationalSecurity Adviser, Politics, 1970-1982 (New 117. Adam B. Ulam, DangerousRelations:The SovietUnionin World York: Oxford University Press,1983),pp. 260-61. 118. "The Soviet occupationof Afghanistan and the Americanresponseled to a sharpbreak to decade," according Garthoff. from wholecourseofU.S.-Soviet relations the overthepreceding eroded and weakenedmutualpolicyof detente "It gave the coup de grace to the alreadyseriously pointthanJanuary waysJanuary 1980was a sharperturning establishedin May 1972.... In many Detente and and repudiateddetente."See Garthoff, 1981,when Ronald Reagan was inaugurated Confrontation,967. p. Detente: Reappraisal(London: Sage, A 119. See Mike Bowkerand Phil Williams,Superpower and in of assumptions 1988). Garthoff, hisreview thisbook,pointsto thecontradictory self-limiting thatsupported detentein theUnitedStatesand SovietUnion: "Detente [according Bowkerand to was nota cause ofAmerica'sapparentweaknessin the 1970s,but a hard-headed strategy Williams] the of devisedbyKissinger and Nixonforcopingwithan adversesituation managing emergence by

Organization 532 International to important raise here because they illustratea common defect in tacit disastrously theyare oftenvague and ambiguous,sometimes understandings: whichgo unnoticed different interpretations, so. Theymaygiveriseto radically and reconcile such no at the time. There is, unfortunately, way to identify whendisputesarise overnonperformance. viewsexceptretroactively, differing By then, the prospectsof futurecooperation may already be destroyedby over recriminations "bad faith." not unique to tacit agreeare The dangersof misunderstanding certainly even the mostformaland detailed. But the ments.They lurkin all contracts, writtenagreementsdoes offera chance to clarify process of negotiating to detailed,restrictive to understandings, agree on joint interpretations, draft such as the for language,and to establishmechanisms ongoingconsultation, by Commission.Tacit agreements, definiU.S.-Soviet StandingConsultative understandlack thisdetail,and lack anyexplicit tion,lack these procedures, ings. in These limitations tacit agreementsare not always a drawback.If the the coversonlya fewbasic points,ifthe partiesclearlyunderstand agreement or incentives betray to in provisions thesameway,and ifthereare no individual Some the thensome keydefectsof tacitbargainsare irrelevant. distort terms, tacitagreement among fit Theyinvolve coordination problems thisdescription. withone another.120 directly who cannotcommunicate multiple participants They the politicsare different. Unfortunately, hard issues of international wherenationalintersalientsolutions, involvecomplicatedquestionswithout to ests are less than congruent.Any commitments cooperate need to be The agreementsthemselvesare not so simply specifiedin some detail.121 If self-sustaining. cooperationis to be achieved,the termsmust be crafted and of the to deliberately minimize risks misunderstanding noncompliance.

and informal treaties agreements Choosingbetween

to statesare reluctant depend on them Because tacitbargainsare so limited, signalthat Theywantsome clear,written projects. important whenundertaking
Soviet power. For the Soviet leaders, on the other hand, detente representedan expected relationsand exerciseSovietpowerin a moreactivewayin to opportunity neutralizesuperpower was the in did however, Angola,Ethiopiaand Afghanistan, result theThirdWorld.Whenthey this, a himself for support detentein the United States and lead to itscollapse." Garthoff, to undercut sees Soviet policies in Africaand Asia as opportunistic relations, notable studentof superpower There was a were the same forU.S.-Soviet relations. however, The results, thanstrategic. rather in involvements the of failure Sovietleadersto appreciatetheadverseconsequencesoftheir "costly "Review of Bowker ThirdWorld on detentewiththe United States." See RaymondL. Garthoff, 65 Affairs (Spring1989),p. 311. Intemational Detente," and Williams'Superpower of The 120. Edna Ullmann-Margalit, Emergence Norms(Oxford:ClarendonPress,1977). moredetailed vaguenesson someissuesas partofa larger, 121. This does notruleout deliberate and some issues have to be finessed if any Cooperation is not comprehensive, settlement. is agreement to be reached.

Informal agreements 533 an agreementhas been reached and includes specificterms.When a state's to on choice of policies is contingent the choices of others,it willprefer spell they choices and the commitments entailand willwantto out these respective actors.These requirements flowsamonginterdependent information improve each withits agreement, or can be met by eithera formaltreaty an informal and owngenericstrengths weaknesses.Each is moreor less suitedto resolving problems. bargaining kindsof international specific mean thatactorsmustchoose betweenthemforspecific These differences each other as elementsof However,theymay also complement agreements. that define NATO, for more inclusivebargains. The treatycommitments by and diplomaticsignificance a streamof instance,are giventheirmilitary allianceissuessuchas thataddresscontemporary declarations summit informal and Sovietpolicyinitiatives. armscontrol, weaponsmodernization, quite varied,ranging as agreements, I have noted,are themselves Informal to declarations elaborateletters to simpleoral commitments jointsummit from Monetary withthe International of intent,such as stabilizationagreements but to Fund (IMF). Some of the mostelaborate are quite similar treaties with statusof the promisesis less clear-cut, The diplomatic twocrucialexceptions. procedures. do and the agreements typically not requireelaborateratification and the or Theylack,to a greater lesserextent, state'sfullest mostauthoritative but so is the on The effects reputationare thus constrained, imprimatur. of dependability the agreement. States equivocate, in principle,on their adherence to these informal to bargains.They are oftenunwilling grantthemthe statusof legallybinding But whatdoes thatmean in practice,giventhatno international agreements. agreementscan bind their signatorieslike domestic contractscan? The signalto other presentedhere is thattreatiessend a conventional argument of and the and to thirdparties concerning gravity irreversibilitya signatories at reputation stake,theyadd to the costs of By state's commitments. putting values reputation. or, breakingagreements rather,theydo so if a signatory moreelusiveon thesecounts. are agreements typically Informal agreeof These escape hatches are the common denominators informal ments,fromthe most elaborate writtendocumentsto the sketchiestoral on agreements.The Helsinki Final Act, with its prominentcommitments pages It identicalto a treaty. includessixty virtually is humanrights, otherwise of detailedprovisions, onlyto declare thatit shouldnotbe considereda treaty whichare are At with commitments.122theotherextreme oral bargains, binding
and on known theFinal Act oftheConference Security as 122. The HelsinkiFinal Act,formally states.On the one hand, Cooperationin Europe, was concludedin 1975 and signedbythirty-five contained"in the to "determination act in accordancewiththeprovisions thestatesdeclaredtheir plainly of The text commitments a treaty. text.On theotherhand,thesewerenotto be thebinding would be. Several withthe United Nations,as a treaty said thatit was not eligibleforregistration democraticstates,led by the United States, declared at the time that this documentwas not statesdisagreedwith "There does not appear to be anyevidencethatthe othersignatory a treaty. a accordingto Schachter.The resultis a curiouscontradiction: nonbinding thisunderstanding,"

Organization 534 International the mostsecret,the mostmalleable,and the quickestto conclude. Like their an theyare a kindof moraland legal oxymoron: moreelaboratecounterparts, equivocalpromise. suitedfor of The speed and simplicity oral bargainsmake themparticularly resolution.But for obvious reasons, states are clandestinedeals and crisis can Oral agreements encompass to reluctant depend on themmoregenerally. of agreement;they cannot set out complicated only a few major points it ways.First, is in obligations anydetail.Theyare unreliablein severaldistinct the authorizedand whether have been officially they difficult tell whether to to as a whole is committed them.Second, theyusuallylack the government that supportcompliance.Third,to ensure and public commitment visibility in implementation complex bureaucraticstates, oral agreementsmust be Sinceremistakes, omissions, at directives some point.123 translated intowritten process withno may and misunderstandings creep in duringthistranslation dispute emerges.Last, but to opportunity correctthembefore an interstate of mostimportant all, it is easier to disclaimoral bargainsor to recastthemon and oral favorableterms.Nobody ever lost an argumentin the retelling, Perhapsthisis whatSam Goldwyn bargainshave manyof the same properties. were notworththe paper they had in mindwhenhe said thatverbalcontracts on.124 werewritten avoids mostof these problems.It intowriting agreements Putting informal produces evidenceof an intendedbargain.What it stilllacks is the generally That is the irreducible associatedwithtreaties. depthof nationalcommitment policyflexibility. priceofmaintaining are also less public than treaties,in two ways.First, Informal agreements committhemas fundamental, self-binding because statesdo not acknowledge Theyare statepractices. evidenceofrecognized are they less convincing ments, on agreements trade For example,informal as thusless significant precedents. as treaty recognition, a formal diplomatic or extradition no proofofimplicit are are more easily agreements mean that informal would be. These limitations
as are witha claimthatthey notto be registered, a bargain.It juxtaposeselaborate"commitments" the legallybindingstatusof from is treaty would be. The point,clearly, to exemptthe provisions and status analysis theHelsinkiagreement itsambiguous of For treaty commitments. an interesting in internationallaw, see Schachter, "The TwilightExistence of NonbindingInternational Legal Agreements,"p. 296. The text of the Helsinki Final Act can be found in Intemational Materials, 14, 1975,pp. 1293 ff. vol. is intowriting requiredbytheU.S. State Department's of 123. This translation oral agreements Regulations,"22 Code of Agreement the regulations implementing Case Act. See "International 13 1981,pp. 35917 ff. part FederalRegulations, 181; and 46 FederalRegister, July are comments about oral agreements 124. There is a nice ironyhere. Goldwyn'sdisparaging mangledthe Englishlanguage,and quotes like this He apocryphal. regularly themselves probably originsof thisquotation to were oftenattributed him,whetherhe said themor not. The murky problemwithoral bargains.How can thirdpartiesever ascertainwho underscorea fundamental gaveone answerto thatquestion:"Two words:im himself whatto whom?Goldwyn really promised 1976),pp. (New York: WilliamMorrow, possible."See Carol Easton, TheSearchforSam Goldwyn (New York: Norton, of A Marx,Goldwyn: Biography theMan BehindtheMyth 150-51; and Arthur 1976),pp. 8-10.

Informal agreements 535 for restricted a particularissue. They have fewerramifications collateral to issues or third parties.They permit cooperationto be circumscribed. Second, informalagreementsare more easily kept secret, if need be. There is no themor to enact themintodomesticlaw, and thereis no requirement ratify to for organizations publication.For need to registerthem with international in highlysensitivebargains, such as the use of noncombatants'territory guerrilla wars,thatis a crucialattribute.125 reasonwhythey must Treaties,too, can be keptsecret.There is no inherent of instrument balance-ofwerea central be made public.Indeed,secrettreaties in and nineteenth But thereare centuries.126 powerdiplomacy the eighteenth powerfulreasons why secret treaties are rare today. The firstand most of is stateswithprinciples public accountfundamental the riseof democratic Secrettreatiesare difficult to and some powersof legislative oversight. ability reconcilewiththese democraticprocedures.The second reason is that ever sincetheUnitedStatesenteredWorldWar I, ithas opposed secretagreements as a matterof basic principleand has enshrinedits position in the peace settlements bothworldwars. of whichworkedclosely The decline of centralizedforeign policyinstitutions, limitsthe uses of secret treaties. witha handfulof politicalleaders, sharply Foreign ministries longer hold the same powers to commit states to no and alliances,to shiftthose alliances, to divide conquered territory, to hide powers of a frompublic view. The discretionary such criticalcommitments in or haveno equivalent modern Western states.Instead, Bismarck Metternich barinstruments strikeinternational to democraticleaders relyon informal restraints. That is precisely objection the institutional gainsin spiteofdomestic agreements. war raisedbytheU.S. Congressregarding powersand executive suchinstitutional Whenleaders are freedfrom restraints, can hide their they use secrettreaties They can simply bargainswithoutmakingtheminformal. and protocols,as Stalin and Hitler did in August 1939 when theycarved up informed Germansthat"ratificathe The EasternEurope.127 Sovietsaccurately
a They offer war are vital allies to the protagonists. 125. States on the bordersof a guerrilla If and operationsand a securesiteforcommunications resupply. securelaunching pad formilitary however,the borderingstates could be brought theirrole becomes too open and prominent, a It themselves. This is clearly delicaterelationship. is best directly thefighting protagonists into as usuallysecretones, such as those reachedbythe United States managedbyinformal agreements, of p. 68. The and Laos during VietnamWar. See Johnson, Making IntemationalAgreements, the in was whenWoodrow 126. The importance secrettreaties European diplomacy underscored of Wilson tried to abolish the practice afterWorld War I. Clemenceau and Lloyd George "said of agreement emphatically thattheycould not agree neverto make a privateor secretdiplomatic knew and everyone were the foundation European diplomacy, of anykind.Such understandings would be to invitechaos. To this[Colonel] House replied... thatto abandon secretnegotiations but confidential talkson delicate matters, onlyto require thattherewas no intention prohibit to that treatiesresulting fromsuch conversations should become 'part of the public law of the at in Moment: 1918-AmericanDiplomacy theEnd world.'" Quoted byArthur Walworth America's of World WarI (New York: Norton,1977),p. 56. Between Germanyand the Union of Soviet Socialist 127. See "Treaty of Non-Aggression Republics,August 23, 1939, Signed by Ribbentropand Molotov," documentno. 228 in United

Organization 536 International and by a tion ... was merely formality" would be completedimmediately the was The Presidium the SupremeSoviet.128 actual Treatyof Non-Aggression of made public.Whatwas keptsecretwas the attachedprotocolthatpartitioned month, the The Poland and the Baltic into spheresof influence.129 following Latvia,Estonia, declaring Nazis and Sovietsadded twomore secretprotocols, Within year,the Baltic stateshad a and Lithuaniapartof the Sovietsphere.130 years, been forcibly incorporatedinto the Soviet Union. For the next fifty the Sovietsrefusedto acknowledge fouryears of glasnost, including first the (who knewabout these secretprotocols.They scornedthe Baltic nationalists factthatthe Allies had copies of the the deal) and ignoredthe inconvenient remainsensitive The because Germandocuments.131 old Soviet-Naziprotocols of expansion.They directly theyunderminethe legitimacy Soviet territorial state. There is impugnthe sources of Soviet dominanceof a multinational and was made secretly whythe Soviets ample reason,then,whythe agreement longtriedto keep it thatway. been used forimportant theseprotocols, secretpacts have rarely Aside from reflects war experience the interstate projectssince WorldWar I. That partly While the war America's rise to global prominence. reflects itselfand partly had publishedthe czaristgovernment's Leon Trotsky was stillbeing fought,
9-September3, 1939, series D, vol. 7 of The Kingdom, ForeignOffice, Last Days ofPeace, August Office, 1956), Policy, 1918-1945 (London: Her Majesty'sStationery Documents German on Foreign of of from translations documents pp. 245-46. The volumeprovidesofficial capturedarchives the and GermanForeignMinistry the Reich Chancellery. [from] Ambassadorin theSovietUnion to the [German] the 128. See "Telegram,Most Urgent, document 447 in ibid.,pp. 439-40. no. ForeignMinistry, August30, 1939,SignedbySchulenburg," 129. See "Secret AdditionalProtocol,August23, 1939, Signed by Ribbentropand Molotov," document 229 in ibid.,pp. 246-47. For an analysisof the protocol,see GerhardL. Weinberg, no. WarII (Chicago: University ChicagoPress, of Starting World TheForeign Policy Hitler's of Germany: 1980),pp. 602-10. of 130. See "Secret AdditionalProtocol,September28, 1939, Between the Government the no. of Foreign USSR and theGovernment theGermanReich," document 159 in UnitedKingdom, on 4, Office, WarYears, The September 1939-March 18, 1940,seriesD, vol. 8 ofDocuments German Office, 1954), p. 166. The document, Foreign Policy, 1918-1945 (London: Her Majesty'sStationery "The Secret which was signed in Moscow by Ribbentropand Molotov, stated the following: that the AdditionalProtocol,signedAugust 23, 1939, shall be amended in item 1 to the effect of territory the Lithuanianstatesfallsto the sphereof influence the USSR, while,on the other of of of hand,theprovince Lublinand partsof the province Warsawfallto the sphereof influence of Treatysignedtoday)." Germany themap attachedto theBoundaryand Friendship (cf. are The 131. The relevant maps and microfilms held in theFederal Republic'sForeignMinistry. The Sovietslong have all been published,in the originaland in translation. captureddocuments were forgeries. could notfind theircopies and thattheWest Germanmicrofilms claimedthatthey They held to this formulaicanswer through1989, when Baltic nationalismbecame a serious of of politicalchallenge.The nationalists, course,emphasizedthe illegitimacy the protocolsand of protest Sovietrule.In August1989,a senior actually publishedtheirtextsas partof theirrising dividedEasternEurope, Sovietofficial thattheSovietsand Nazis had secretly acknowledged finally boundariesof the Soviet had no bearingon the current but he insistedthatthe secretagreement Union. See PeterGumbel,"Bonn Has DocumentsSovietsDon't Want VeryMuch to Find," Wall Street Joumal, European edition,23-24 June1989,pp. 1 and 10; EstherB. Fein, "Soviets Confirm Nazi Pacts Dividing 19 Europe," TheNew YorkTimes, August1989,pp. 1 and 5; and EstherB. Fein, 25 of "Soviet CongressCondemns'39 Pact That Led to Annexation Baltics,"TheNew YorkTimes, December 1989,pp. 1 and 15.

agreements 537 Informal Theyshowedhow Italyhad been enticedintothewar (through secrettreaties. the London treaty)and revealed that Russia had been promisedcontrolof Constantinople.The Allies were embarrassedby the publicationof these for and were forcedto proclaimthe largerprinciples agreements self-seeking and citizens werefighting dying.132 whichtheir of He WoodrowWilsonhad alwayswantedsuch a statement intent. argued that this was a war about big issues and grand ideals, not about narrow He aggrandizement. dissociatedthe United States or self-interest territorial and from Allies' earliersecretcommitments soughtto abolishthemforever the whereWilson once thewar had been won. At theVersaillespeace conference, the negotiations,he began with a stated his Fourteen Points to guide to commitment "open covenants ... openly arrivedat." He would simply of understandings anykind[so that]diplomacy international eliminate "private and in thepublicview.",133 shallproceed alwaysfrankly These Wilsonian ideals were embodied in Article 18 of the League of NationsCovenantand laterinArticle102 oftheUnitedNations(UN) Charter. international and, in the agreements They provideda means for registering could be to agreements case of the UN, an incentive do so. Only registered the Court including International accordedlegal statusbeforeanyUN affiliate, of Justice. This mixture legalismand idealismcould neverabolish private of secrettreatiesamongdemocratic but eliminate understandings, it did virtually states.Informal live agreements on as theirclosestmodernsubstitutes.

by Conclusion:international cooperation informal agreement

of illuminate possibilities internathe agreements The varieduses of informal limitations. They underscorethe fact tional cooperationand some recurrent and that its very limits may be that cooperation is often circumscribed the Their aim is oftento restrict scope and fundamental the participants. to of and to avoid anygeneralization theirimplications. durationof agreements bargainsare the The ends are oftenparticularistic, means ad hoc. Informal
There was a strong, was shrewdand effective. release of the secretdocuments 132. Trotsky's countries. Wilsonhimself mainly the Anglo-Saxon in sustainedreactionagainstsecretdiplomacy, allies had not told himof theirearlierbargainsor Eitherhis wartime was politically embarrassed. attackson secretdiplomacy. theyhad told himand he had keptthe secret,despitehis principled Politics, 1 of The vol. and to of See Mario Toscano,An Introduction theHistory Treaties Intemational Press, Politics(Baltimore,Md.: JohnsHopkins University and Intemational History Treaties of UK: Penguin EuropeSince 1870, 2d ed. (Harmondsworth, 1966), pp. 42 and 215; and JamesJoll, Books, 1976),p. 233. 1918. When 133. Wilson's war aims were stated to a joint session of Congresson 8 January Wilsonannouncedthathe to European leaders laterchallengedthiscommitment open covenants, Point One. including Americantermsin the program," the would nevercompromise "essentially Papers of Colonel House, vol. 4, ed. by Charles Seymour See Edward M. House, The Intimate (London: ErnestBenn, 1928),pp. 182-83.

Organization 538 International (and no from outset.More oftenthannot,thereis no intention the delimited longertime of themto widerissues,otheractors, possibility) extending realistic of not the beginning a They are simply periods,or more formalobligations. processofcooperationor a moredurableone. moreinclusive shape the formthat agreementscan take. Interstate These constraints constituencies, to domestic designedto be hiddenfrom bargainsare frequently of to ratification, escape the attention otherstates,or to be avoid legislative They may well be conceivedwith no view and no aspirations renegotiated. valuable now transitory arrangements, about the longerterm.Theyare simply but ready to be abandoned or reordered as circumstanceschange. The diplomaticconsequences and reputationaleffectsare minimizedby using may also be ratherthan treaties.Informalagreements agreements informal mayhave To the chosenbecause of timepressures. resolvea crisis, agreement with and definitively, no timeforelaboratedocuments. quickly to be struck they can Because informal agreements accommodatethese restrictions, are cooperation.States use them,and use them commontools forinternational agreement.They are to frequently, pursue national goals by international as and Theyconstitute, JudgeRichardBaxter flexible, theyare commonplace. 134 paper." Their of a once remarked, "vast substructure inter-governmental cooperation to to presencetestifies the perennialefforts achieve international silently itslimits. to testifies Theirform variety. and to itsinstitutional

" Variety,' p. 549. Law in 'Her Infinite "International 134. Baxter,